In the wake of the Supreme Court’s recent Windsor opinion, the focus of marriage equality litigation has returned to challenging state gender-specific marriage laws that make a couple’s right to marry a function of their genders. The outcomes of these future legal challenges will be affected by the level of scrutiny that courts apply. To date, all courts that have applied heightened scrutiny have held same-sex marriage prohibitions to be unconstitutional, while courts applying rational basis review have often upheld such laws.
Laws that classify or discriminate based on gender are generally subject to heightened scrutiny. Yet the vast majority of courts have held that gender-specific marriage laws neither classify nor discriminate based on gender because the laws apply to both men and women, and thus are not subject to heightened scrutiny. In Loving v. Virginia, however, the Supreme Court explicitly rejected the parallel argument that if a race-specific marriage law applies equally to all affected races then heightened scrutiny is unnecessary.
Courts wishing to avoid heightened scrutiny have attempted to distinguish Loving. For example, courts have concluded that Loving is irrelevant to the level of scrutiny applied in equal protection challenges to gender-specific marriage laws because, while miscegenation laws were implemented to further the theory of white supremacy, gender-specific marriage laws do not have a similar improper discriminatory purpose. In particular, they assert that gender-specific marriage laws are not motivated by a desire to put one gender in a superior position to another gender.
This Article explains why these attempts to distinguish Loving are flawed. First, courts misapply the basic equal protection framework when they demand a discriminatory motivation for gender-specific marriage laws as part of determining the appropriate level of scrutiny. Furthermore, even if intent were relevant to that determination, supporters of same-sex marriage bans seek to implement and reinforce a gendered model of marriage in which a woman is presumed to be subordinate to a man. To social conservatives, who are the driving force behind gender-specific marriage laws, same-sex marriage is dangerous precisely because it threatens the gendered model of marriage in which a husband dominates his wife. The Article concludes by noting that following the logic of Loving, same-sex marriage bans necessarily classify based on gender and, thus, gender-specific marriage laws should receive heightened scrutiny.
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