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

Posted: 27 Jun 2011

See all articles by Mark Strasser

Mark Strasser

Capital University - Law School

Date Written: January 6, 2011


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

Suggested Citation

Strasser, Mark, Equal Protection, Same-Sex Marriage, and Classifying on the Basis of Sex (January 6, 2011). Pepperdine Law Review, Vol. 38, pp. 1021-1052, 2011. Available at SSRN: https://ssrn.com/abstract=1735989

Mark Strasser (Contact Author)

Capital University - Law School ( email )

303 E. Broad St.
Columbus, OH 43215-3200
United States
614-236-6686 (Phone)
614-236-6956 (Fax)

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