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Similarly Situated

45 Pages Posted: 31 Mar 2011 Last revised: 14 Dec 2011

Giovanna Shay

affiliation not provided to SSRN

Date Written: 2011


Opponents of marriage equality in California, Connecticut, and Iowa have argued that gay and straight couples are not “similarly situated.” These litigants have framed “similarly situated” as a threshold inquiry that must be satisfied for equal protection plaintiffs to merit full equal protection review. Courts in Iowa and California have questioned this construction of the “similarly situated” requirement, noting that it essentially permits an end run around equal protection scrutiny. This Article is the first to focus exclusively on the “similarly situated” requirement. It delves into the history of the phrase “similarly situated,” tracing its appearance in equal protection case law in an 1884 precursor case to Yick Wo v. Hopkins. The Article argues that “similarly situated” analysis is not a precondition to equal protection review, but rather a restatement of the central principles of equal protection, specifically the relationship between the statutory classification and legislative purpose. It examines cases in which “similarly situated” analysis was hotly litigated, including the marriage equality cases. It asserts that, properly understood and applied, “similarly situated” analysis is one-and-the-same as “rational basis with bite,” or intermediate scrutiny, and could play a role in a unified approach to equal protection. It concludes by noting that “similarly situated” analysis is inextricably linked to our conceptions of the social institutions at issue.

Keywords: same-sex marriage, marriage equality litigation, gay rights

Suggested Citation

Shay, Giovanna, Similarly Situated (2011). George Mason Law Review, Vol. 18, p. 581, 2011; Western New England University School of Law Legal Studies Research Paper No. 11-15. Available at SSRN:

Giovanna E. Shay (Contact Author)

affiliation not provided to SSRN

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