The Benefits of Unequal Protection

Harvard Law Review, March 2013 | Go to article overview

The Benefits of Unequal Protection


Beginning with Massachusetts in 2004, a number of states have legalized same-sex marriage. (1) At the same time, the federal government does not recognize same-sex marriages. (2) As a result, in states allowing them to marry, same-sex couples may be nominally equal to their opposite-sex peers but in practice face substantially higher federal tax burdens and other disadvantages. (3)

In response, a number of employers, both private and public, have begun offering a "gross-up" to employees in same-sex marriages. (4) The gross-up is designed to eliminate the tax disparity between similarly situated same-sex and opposite-sex couples by increasing the pre-tax salaries of employees in same-sex marriages. (5) To date, nine Fortune 100 companies have adopted same-sex gross-up policies, and many others are considering following suit. (6) As these policies become more common, it is likely that they will spread with increasing speed as employers try to retain their competitive edge against one another, (7) and there is no indication that the trend would reverse even if the Supreme Court strikes down federal marriage restrictions. (8) With the spread of same-sex gross-ups, a relatively rare phenomenon has occurred: the private sector has taken upon itself the task of helping to equalize the conditions for a minority group that has long been, and in many ways remains, an object of the majority's contempt. (9) Perhaps unsurprisingly, same-sex gross-up policies have received a fair deal of media interest, (10) most of which praises them. (11) Yet even though some commentators have noted that same-sex gross-ups could ultimately face legal challenges as they become more popular, (12) they remain largely unexplored by legal academics and courts. (13) As a result, an important question remains unaddressed: are same-sex gross-ups legal?

This Note answers that question and examines its broader implications for legal protection of minorities. Advocates for various minority groups have long urged legislators and courts to adopt greater statutory (14) and constitutional (15) protections for their groups. Those advocates, however, may be operating under the questionable assumption that increased protections are strictly beneficial for the groups they are designed to help. But well-intentioned legal reforms could actually invalidate same-sex gross-ups, meaning that there may be certain benefits to unequal legal protection regimes, at least in some contexts, that scholars and advocates have not yet considered.

Part I explains the concept of same-sex gross-ups as a well-intentioned effort by employers. Part II analyzes the legality of gross-ups under federal and state antidiscrimination statutes, while Part III examines the validity of those policies, when implemented by public employers, under the U.S. Constitution. Those sections conclude that, while gross-ups most likely are legal under existing doctrine, they would likely be invalidated under the more rigorous statutory and constitutional standards that gay rights supporters have advocated. Finally, Part IV discusses the implications of this finding, observing that less stringent standards may often benefit minority groups more than more stringent standards. Specifically, less stringent standards may serve as one-way filters, allowing beneficial policies like gross-ups but prohibiting malicious policies, whereas more stringent standards typically require two-way equality, protecting the politically weak group from malicious policies but protecting its stronger counterpart against affirmative action (16) policies as well. Overall, this conclusion suggests that it may be worthwhile to reconsider the assumption that heightened scrutiny is an unabashed good for the minority group it protects.

I. THE MECHANICS OF THE SAME-SEX GROSS-UP

The discrepancy between federal and state law has important ramifications for same-sex spouses. The federal government's refusal to recognize same-sex marriages often results in quantitative disadvantages deriving from the federal tax code. …

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