Faculty Scholarship 1994 - Present

Equal Protection and Same-Sex Marriage: An Irresistible Match

At midnight on September 21, 1996, President Clinton quietly and without fanfare signed the Defense of Marriage Act (DOMA) into law. DOMA has two provisions. The first defines "marriage" and "spouse" for the purposes of all acts, rulings, regulations, or interpretations of administrative bureaus and agencies of the United States. "Marriage" is defined as a "legal union between one man and one woman as husband and wife," and "spouse" refers only to a person of the opposite sex who is a husband or wife." The second proviision permits states to give no recognition of same sex marriages authorized by other states. Since DOMA became law, thirty-eight states have enacted legislation, modeled after DOMA, mandating (1) that only a female may marry a male and only a male may marry a female, and (2) that a marriage between two persons of the same gender is void. By creating classifications permitting some and prohibiting others from marrying, these statutes deprive the latter of a fundamental right and set the stage for constitutional challenges under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The purpose of this article is to demonstrate that denying individuals the right to enter same-sex marriages violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. More particularly, this article argues that statutes restricting marriage to a man and a woman create a legal classification that disadvantages men and women who want to enter into same-sex marriages, by denying them the fundamental right to marry without any rational basis for the restriction. Part I of this article will examine the protection provided by the Equal Protection Clause of the Fourteenth Amendment. Part II of this article will explore United States Supreme Court decisions that invalidate classifications on the basis of sex or gender under the Equal Protection Clause. Part III will examine United States Supreme Court decisions that invalidated classifications on the basis of sexual orientation. Part IV will examine the right to marriage as a fundamental right protected by the Constitution of the United States. Part V will examine the justifications advanced for limiting marriage to same-sex couples to ascertain whether there is any basis for restricting marriage to a man and a woman under the Equal Protection Clause. Part VI will ascertain whether the prohibition against same-sex marriages can be sustained under any of the Equal Protection Clause tests.