Beyond Rational Relations: The Constitutional Infirmities of Anti-Gay Partnership Laws under the Equal Protection Clause

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Abstract: Anti-gay partnership laws prevent state and local governments from granting rights, benefits, and obligations associated with marriage to same-sex couples. Fifteen states have anti-gay partnership laws that prohibit the creation of civil unions, domestic partnerships, or specific partnership rights for gay couples. Although enacted under legitimate state authority, these laws come into conflict with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because they isolate gay citizens for special disadvantages and burdens within the traditional political processes. Under equal protection analysis, a law that neither burdens a fundamental right nor targets a protected class will be presumed valid if it bears a rational relation to a legitimate governmental interest. However, the U.S. Supreme Court uses a more searching form of rational-basis review when examining laws that exhibit a desire to harm politically unpopular groups like gay citizens. In Romer v. Evans, the Court held that a constitutional amendment prohibiting special rights for gay citizens violated equal protection principles because its extensive breadth could not be rationally justified by legitimate state interests. This Comment argues that certain anti-gay partnership laws similarly violate equal protection principles because the sweeping harm they cause to gay citizens cannot be supported by legitimate state interests in marriage and the family. By contrast, other anti-gay partnership laws likely survive equal protection analysis because their more narrow prohibition of only comprehensive partnership rights corresponds more directly to the potentially legitimate state interests underlying the decision to bar same-sex couples from marrying. Ultimately, the Equal Protection Clause resists all laws that isolate gay citizens for special disadvantages, but requires only the invalidation of anti-gay partnership laws that cause broad and sweeping harm.

The contemporary political struggle over marriage equality in the United States has been fast and fierce.1 As gay, lesbian, and bisexual citizens2 gain new access to marriage, civil unions, and domestic partnership benefits across the nation,3 conservative groups seek to solidify the status quo by passing restrictive marriage laws.4 Recently, fifteen states have used their authority over marriage laws to enact anti-gay partnership laws that prohibit for same-sex couples the establishment of civil unions, domestic partnerships, and other rights traditionally reserved to marriage.5

Anti-gay partnership laws prevent state and local governments from creating partnership rights for same-sex couples.6 Unlike laws that restrict marriage to a union between a man and a woman, anti-gay partnership laws bar governmental action with respect to a wide range of potential rights.7 This Comment distinguishes anti-gay partnership laws based on the scope of the laws and on the citizens targeted by the laws.8 The scope of anti-gay partnership laws ranges from Class I laws, which prohibit any and all same-sex partnership rights, to Class II laws, which ban only comprehensive same-sex partnership rights.9 Anti-gay partnership laws target either same-sex couples in particular or unmarried couples in general.10

The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution provides that no person shall be denied the equal protection of the laws.11 Yet this command must co-exist with the practical necessity of legislative classifications.12 Accordingly, the U.S. Supreme Court has fashioned a three-tiered system of equal protection analysis that defers to legislative judgment if a law bears a rational relation to a legitimate governmental interest, provided that the law does not burden a fundamental right or target a protected class.13 However, the Court has deviated from this system and applied a heightened form of rational-basis review in a line of cases involving laws that display a desire to harm politically unpopular groups, such as gay citizens. …