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Unpublished Paper
Framing the Loving Analogy: Same-Sex Marriage, Gender Classifications and Heightened Scrutiny Under the Equal Protection Clause
ExpressO (2008)
  • Luiz Antonio Salazar Arroyo, University of California, Berkeley
Abstract

In the attached article, I argue that laws requiring marriage to be between a man and a woman make a facial gender classification triggering intermediate scrutiny. The constitutionality of laws banning same-sex marriage is one of the most important and hotly contested constitutional topics of the 21st century with the California Supreme Court releasing a decision on the subject this summer, and gay marriage cases pending in the High Courts of Connecticut and Iowa.

Ever since the Supreme Court decided Loving v. Virginia and declared that laws banning interracial marriage were unconstitutional, same-sex marriage advocates have claimed that laws restricting marriage on the basis of a person’s gender are just as unconstitutional as laws restricting marriage on the basis of a person’s race. Despite overwhelming support for this claim within the academic community, few judges have accepted the argument that same-sex marriage bans constitute sex discrimination or even that they make a gender classification triggering heightened scrutiny. This article claims that judges have been reluctant to accept the Loving analogy because same-sex marriage advocates have excessively relied on the single case of Loving v. Virginia and advocates must look to the entire framework of modern equal protection analysis.

By laying out the framework of modern equal protection analysis, this article shows that heightened scrutiny for equal protection claims is a two-step process. Under the first step, the reviewing court must determine what is the appropriate level of scrutiny to be applied based on the classification made by the law (i.e. economic, gender or race). The second step requires the reviewing court to determine whether the law passes the appropriate level of scrutiny. With heightened scrutiny broken down into this two-step approach, this article focuses only on the first step to reject much of the Loving analogy’s criticism and solidify the claim that same-sex marriage bans make a gender classification triggering intermediate scrutiny.

Disciplines
Publication Date
May 5, 2008
Citation Information
Luiz Antonio Salazar Arroyo. "Framing the Loving Analogy: Same-Sex Marriage, Gender Classifications and Heightened Scrutiny Under the Equal Protection Clause" ExpressO (2008)
Available at: http://works.bepress.com/luiz_arroyo/1/