Same-Sex Marriage: A Threat to Tiered Equal Protection Doctrine?

Article excerpt


Recent same-sex marriage cases have generated substantial debate in legal, political, and social circles; few, however, give attention to the effect of these cases on legal doctrine itself. As scholars, judges, and justices debate the constitutionality of same-sex marriage prohibitions under the traditional threetiered equal protection analytical model, the cases themselves should provide substantial impetus to abandon the rigidity of the current methodology in favor of a more flexible approach that produces results consistent with constitutional provisions of equality. Because plaintiffs routinely challenge same-sex marriage prohibitions under equality guarantees contained in state constitutions rather than the federal constitution, state courts employ different equal protection methodologies to assess these claims.1 While some of these methodologies mirror those employed by federal courts assessing claims brought under the Fourteenth Amendment, some states utilize a contrasting, unitary standard. By analyzing the varying approaches to this singular problem, we can make comparative judgments about the strengths - and weaknesses - of specific equal protection doctrines. Comparing the approaches and results of recent samesex marriage cases in Washington, New York, Maryland, Vermont, and New Jersey reveals that the traditional tiered analysis contains inherent flaws impeding accomplishment of equal protection's normative goals. In contrast, the cases show that a more flexible and unitary doctrine provides the proper framework for resolving not only same-sex marriage cases, but all federal and state equal protection cases.

Part I of this Article summarizes the Supreme Court's traditional tiered doctrine for assessing federal Fourteenth Amendment Equal Protection claims. Next, the Article discusses various criticisms of tiered equal protection analysis as well as alternative doctrines proposed by Supreme Court Justices and scholars. Part II will analyze recent same-sex marriage cases in Washington, New York, and Maryland. Although involving challenges based on equality guarantees contained in their respective state constitutions, Hernandez v. Robles2 Andersen v. King County,3 and Conaway v. Deane,4 applied methodologies mirroring federal equal protection doctrine. The discussion of these cases will focus on several flawed aspects of the analyses. Though many of the problems stem from an erroneous application of the federal doctrine, some flaws are inherent in the doctrine itself. While the former set of issues support only a call for clarity from the Supreme Court and more rigorous analysis in applying the doctrine, the latter problems demand re-evaluation of the traditional tiered methodology.

The discussion in Part III focuses on recent same-sex marriage cases in New Jersey5 and Vermont.6 In contrast to the prior cases, New Jersey and Vermont use a unitary standard to assess state equal protection claims. This Part will show that while the unitary standard is furthest from federal doctrine in form, New Jersey and Vermont provide - in substance - a closer approximation of the relevant equal protection interests than do states applying a tiered analytical model. Considering the specific issue of same-sex marriage, it becomes evident the traditional doctrine is flawed in its rigidity and that New Jersey's and Vermont's standards - or a similar unitary standard provide a better resolution of the relative interests. This is because the same-sex marriage cases magnify the contrast between the different doctrines, a contrast that reveals structural flaws transcending this specific issue and compelling modification of federal and state equal protection methodologies to a unitary standard that eschews rigidity for flexibility.7

In addition to highlighting the problems of tiered doctrine, an analysis of the different models used in New York, Washington, Maryland, New Jersey, and Vermont provides a framework for constructing an equal protection methodology that more appropriately reflects the interests and normative goals of federal and state constitutional provisions of equality. …