Equal Protection, Same-Sex Marriage, and Classifying on the Basis of Sex

Abstract:     
This article reviews several state court analyses of whether same-sex marriage bans violate the equal protection guarantees afforded by the respective state constitutions. The article discusses the lack of uniformity not only with respect to the result but with respect to the kind of classification that is implicated in such bans. The article concludes that unless the Supreme Court corrects some of the misunderstandings regarding the proper application of equal protection guarantees, that jurisprudence will either become even more confused or, perhaps, will coalesce around a doctrine that has been rejected for almost half a century.

Keywords: same-sex marriage, orientation-based discrimination, sex-based discrimination, gender-based discrimination, heightened scrutiny, suspect class, equal application, express

JEL Classification: J12, J71, K10

Accepted Paper Series