In the battle for marriage equality, equal protection has proven to be a more successful strategy than fundamental rights. This outcome is perhaps surprising, given that civil unions arguably afford at least "formal" equality to same-sex couples. Yet the supreme courts of Connecticut and California have emphasized the denial of equality that the difference in names connotes - civil unions or domestic partnerships v. marriage - and therefore have moved dramatically towards real equality. These two courts were the first to declare that sexual orientation is a suspect (California) or quasi-suspect (Connecticut) classification, thereby radically changing the debate and the showing that the legislature needs to make to justify discrimination against gays and lesbians.

The article explores these decisions, and the more recent decision by the Iowa Supreme Court, as the culmination of a natural process of judicial evolution that has led from "virtual equality" (in states such as New Jersey and Vermont) to real equality. It argues that the choice of heightened scrutiny analysis is a natural, and perhaps inevitable, result of the recognition that the "virtual equality" conferred by “marriage equivalent” laws is insufficient to confer true equality on same-sex couples.