Equal access and the right to marry

University of Pennsylvania Law Review

Volumn 158, Issue 5, 2010, Pages 1375-1449

  Tebbe, N ^a   Widiss, Deborah A ^b  

^a BROOKLYN LAW SCHOOL   (United States)

^b INDIANA UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 77953264190     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (527)

1. Complaint Perry v. Schwarzenegger, No. 09-2292 (N.D. Cal. May 22, 2009).
2. See, e.g., Zablocki v. Redhail, 434 U.S. 374 (1978) (marriage);
3. Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966) (voting);
4. Douglas v. California, 372 U.S. 353 (1963) (criminal appeals).
5. See, e.g., Hernandez v. Robles, 855 N.E.2d 1, 6 (N.Y. 2006) (noting the plaintiffs' due process argument).
6. See, e.g., id at 9 ("The right to marry is unquestionably a fundamental right The right to marry someone of the same sex, however, is not 'deeply rooted'; it has not even been asserted until relatively recent times." (citations omitted)).
7. See, e.g., Varnum v. Brien, 763 N.W.2d 862, 889-904 (Iowa 2009) (applying heightened scrutiny to strike down marriage bans on the grounds that sexual orientation is a suspect class);
8. Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 412 (Conn. 2008) (same). The one exception is California, which suggested that same-sex couples have a right to marry-or, at least, to have their relationships formally recognized by the state-based in part on the state's due process clause, although the court relied more heavily on a separate constitutional provision addressing privacy interests.
9. In re Marriage Cases, 183 P.3d 384, 419-20 (Cal. 2008),
10. superseded by constitutional amendment, CAL. CONST, art 1, §7.5,
11. as recognized in Strauss v. Horton, 207 P.3d 48, 122 (Cal. 2009).
12. See Patricia A. Cain, Imagine There's No Marriage, 16 QUINNIPIAC L. REV. 27, 40-43 (1996) (concluding that a state could abolish civil marriage widiout violating due process);
13. Cass R. Sunstein, The Right to Marry, 26 CARDOZO L REV. 2081, 2083 (2005) (same).
14. In our terminology, "civil marriage" refers to marriages that are recognized by the government In most states, to enter a civil marriage, a couple must apply for a state marriage license, generally by completing a form that demonstrates that they meet the marriage requirements as defined under state law, and they must solemnize their marriage in a civil proceeding or religious ceremony after which the (rehgious or secular) officiant files the marriage license with the state. "CivU union" or "domestic partnership" describes a separate status, also created by the government (sometimes available to both different- and same-sex couples and sometimes available only to samesex couples), that provides some or all of the benefits and obligations of civil marriage without using tie term "marriage."
15. See generally, e.g., MARTHA ALBERTSON FlNEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY, AND OTHER TWENTIETH CENTURY TRAGEDIES (1995) (advocating that states allocate benefits on the basis of parent-child and other caretaker-dependent relationships rather than marital-nuclear-family relationships);
16. NANCYPOUKOFF, BEYOND (STRAIGHT AND GAY) MARRIAGE: VALUING ALL FAMIUES UNDER THE LAW (2008) (arguing that the state should not privilege marriage above other diverse fantily forms).
17. Advocates and commentators have also argued that different-sex marriage requirements constitute sex discrimination because they limit marriage based on the sex of each member of the couple, but courts have typically rejected this argument See infra text accompanying notes 159-161.
18. See, e.g, Kerrigan, 957 A.2d at 482;
19. Varnum, 763 N.W.2d at 906-07.
20. Standhardt v. Superior Court ex rel County of Maricopa, 77 P.3d 451 (Ariz. Ct App. 2003);
21. Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct App. 2005);
22. Conaway v. Deane, 932 A.2d 571 (Md. 2007);
23. Hernandez v. Robles, 855 N.E.2d 1 (NY. 2006);
24. Andersen v. King County, 138 P.3d 963 (Wash. 2006).
25. See, e.g, Wilson v. Ake, 354 F. Supp. 2d 1298, 1307-08 (M.D. Fla. 2005).
26. See Suzanne B. Goldberg, Equality Without Tiers, 77 S. CAL. L. REV. 481, 518-24 (2004) (describing how tiered review seems to be breaking down and advocating a move to a single, uniform test).
27. See cases cited supra note 11.
28. Goodridge v. Dep't of Pub. Healdi, 798 N.E.2d 941, 968 (Mass. 2003).
29. See, e.g., San Antonio Indep. Sch. Dist v. Rodriguez, 411 U.S. 1, 35 n.78 (1973) (noting that "the right to vote, perse, is not a constitutionally protected right");
30. Pope v. Williams, 193 U.S. 621, 632 (1904) ("The privilege to vote in any State is not given by the Federal Constitution, or by any of its amendments.");
31. McPherson v. Blacker, 146 U.S. 1, 35 (1892) (noting that the state legislature has plenary power to choose electors for the electoral college and that it may decide to choose electors itself radier than hold a direct election);
32. Cain, supra note 6, at 35-36 ("If a state were to abolish in total the right of its citizens to vote in state elections, no explicit provision of the United States Constitution would be violated.");
33. Sunstein, supra note 6, at 2096 ("As the Constitution is now understood, states are not required to provide elections for state offices.").
34. Harper v. Va. Bd. of Elections, 383 U.S. 663 (1966).
35. See Douglas v. California, 372 U.S. 353, 355 (1963) ("[T]here can be no equal justice where the kind of an appeal a man enjoys 'depends on the amount of money he has.'"
36. (quoting Griffin v. Illinois, 351 U.S. 12, 19 (1956))).
37. See M.L.B. v. S.L.J., 519 U.S. 102 (1996) (holding that a state could not dismiss a modier's appeal from a termination of parental rights solely because she could not afford record-preparation fees);
38. Bodthe v. Connecticut, 401 U.S. 371 (1971) (holding that a state could not deny access to divorce proceedings solely because of inability to pay court fees and costs).
39. See, e.g., M.L.B., 519 U.S. at 120 (observing that "the Court's decisions concerning access to judicial process ... reflect bodi equal protection and due process concerns" and that a "precise rationale has not been composed because cases of this order cannot be resolved according to easy slogans or pigeonhole analysis" (internal quotation marks and citations omitted)).
40. Sunstein, supra note 6, at 2083-85. Patricia Cain likewise argues that the right to marry is properly grounded in the fundamental interest branch of equal protection law, draws analogies to voting, and concludes, as we do, that the state could constitutionally abolish marriage. See generally Cain, supra note 6. However, she also focuses on state rationales for civil marriage, and she ultimately argues that state recognition of nonmarriage equivalents would be sufficient Id pt V. In contrast, we argue that equal access to the expressive benefits of civil marriage is critical.
41. See Sunstein, supra note 6, at 2114.
42. Additionally, Sunstein's article was written before almost all of the recent samesex marriage cases were decided, and he only explores the implications of his approach for at issue in a limited way. By contrast, we carefully analyze and critique how courts have understood these claims in the context of same-sex marriage, and our proposal responds to limitations of the two principal arguments advanced up until now. We have also found helpful Pamela Karlan's discussions of the "stereoscopic" overlap of the Due Process and Equal Protection Clauses. Pamela S. Karlan, Equal Protection, Due Process, and the Stereoscopic Fourteenth Amendment, 33 McGEORGE L. REV. 473 (2002) [hereinafter Karlan, Stereoscopic];
43. Pamela S. Karlan, Foreword: Loving Lawrence, 102 MICH. L. REV. 1447, 1448 (2004) [hereinafter Karlan, Foreword]. However, her focus is not on marriage rights.
44. In Harper, a case located in the fundamental interest wing of equal protection law, the Court noted that "[i]n determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality" and it emphasized that "[n]otions of what constitutes equal treatment for purposes of the Equal Protection Clause do change." Harper v. Va. Bd. of Elections, 383 U.S. 663, 669 (1966).
45. See, e.g., Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973);
46. Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971);
47. Singer v. Hara, 522 P.2d 1187 (Wash. Ct App. 1974). The same-sex couple seeking marriage rights in Baker v. Nelson appealed the case to the Sqpreme Court of the United States, which dismissed the appeal "for want of substantial federal question." 409 U.S. 810, 810 (1972). Although a summary dismissal is technically a dismissal on the merits, the Supreme Court has made clear that such a dismissal does not "have the same precedential value ... as does an opinion of th[e] Court after briefing and oral argument on the merits."
48. Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 477 n.20 (1979). The Court has therefore suggested that although generally "inferior federal courts had best adhere to the view that if the Court has branded a question as unsubstantial, it remains so," this may not be the case "when doctrinal developments indicate otherwise."
49. Hicks v. Miranda, 422 U.S. 332, 344 (1975) (internal quotation marks omitted). As discussed in detail in the text, bodi equal protection and due process doctrines, as related to the question of same-sex marriage, have evolved considerably since 1972, when Baker-was dismissed. Accordingly, we agree with courts that have held that the dismissal in Baker does not bar lower federal courts from substantively considering the federal constitutional claims that case raised.
50. See, e.g, In re Kandu, 315 B.R. 123, 135-38 (Bankr. W.D. Wash. 2004). However, we recognize that other federal courts have held that Baker is binding precedent
51. See, e.g., Wilson v. Ake, 354 F. Supp. 2d 1298, 1304-05 (M.D. Fla. 2005). In any case, Baker is not a binding determination on state constitutional claims, including claims brought under state analogues of federal constitutional provisions.
52. See, e.g., Hernandez v. Robles, 855 N.E.2d 1, 17 n.4 (N.Y. 2006)
53. (deeming Baker instructive on the scope of the federal Due Process Clause as interpreted in Loving v. Virginia, 388 U.S. 1 (1967), but noting that the New York Due Process Qause may be interpreted "more expansively"). And of course, the U.S. Supreme Court may choose to consider any federal constitutional claims on the merits and overrule whatever precedential significance Bakerholds.
54. See Brause v. Bureau of Vital Statistics, No. 3AN-95-6562,1998 WL 88743 (Alaska Super. Ct 1998) (holding that state different-sex-marriage requirements triggered strict scrutiny because they interfered with the right to privacy, classified on the basis of sex, and placed limitations on the exercise of a fundamental right);
55. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (holding that state different-sex-marriage requirements employed sexbased classifications subject to strict scrutiny under the state's equal protection clause).
56. See ALASKA CONST, art I, §25;
57. HAW. CONST, art I, § 23.
58. See Human Rights Campaign, Marriage and Relationship Recognition, http://www.hrc.org/issues/marriage/marriage-laws.asp (last visited Mar. 15, 2010) (cataloguing state provisions).
59. -1 U.S.C. §7 (2006); 28 U.S.C. §1738C (2006).
60. Standhardt v. Superior Court ex rel County of Maricopa, 77 P.3d 451 (Ariz. Ct App. 2003).
61. Strauss v. Horton, 207 P.3d 48 (Cal. 2009). The California decision upholds a constitutional amendment limiting marriage to different-sex couples but relies heavily on the fact that California permits same-sex couples to form domestic partnerships that provide the legal rights and benefits of marriage. Id. at 74-77. An earlier California decision had held that a statutory provision that limited marriage to different-sex couples violated the state constitution.
62. In re Marriage Cases, 183 P.3d 384 (Cal. 2008).
63. Morrison v. Sadler, 821 N.E.2d 15 (Ind. Ct App. 2005).
64. Conaway v. Deane, 932 A.2d 571 (Md. 2007).
65. Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006).
66. U v. State, 110 P.3d 91 (Or. 2005).
67. Andersen v. King County, 138 P.3d 963 (Wash. 2006).
68. Dean v. District of Columbia, 653 A.2d 307 (D.C. 1995).
69. See, e.g., Smelt v. County of Orange, 374 F. Supp. 2d 861 (CD. Cal. 2005) (upholding DOMA);
70. Wilson v. Ake, 354 F. Supp. 2d 1298 (M.D. Fla. 2005) (same);
71. In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004) (same);
72. see also Qtizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Qr. 2006) (finding that a Nebraska constitutional amendment limiting marriage to different-sex couples did not violate the Federal Constitution).
73. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941 (Mass. 2003);
74. see also Opinions of the Justices to the Senate, 802 N.E.2d 565 (Mass. 2004) (determining that the state must offer same-sex couples the right to marry rather dian access to a separate status such as civil union).
75. Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407 (Conn. 2008).
76. Vamum v. Brien, 763 N.W.2d 862 (Iowa 2009).
77. N.H. REV. STAT. ANN. §457:1-a (2010).
78. VT. STAT. ANN. tit. 15, §8 (2009). In 1999, the Vermont Supreme Court had held that the state's failure to provide the rights and benefits of marriage violated its state constitution but that the state could meet its obligation by creating a separate civil union status.
79. Baker v. State, 744 A.2d 864,867 (Vt. 1999).
80. Council of D.C. B18-0482, Council Period 18 (D.C. 2009).
81. ME. REV. STAT. ANN. tit 19-A, §§650-A, 650-B, 651 (2009).
82. See Dep't of the Sec'y of State, Bureau of Corps., Elections & Comm'ns, 2009 Referendum Tabulation, http://www.mame.gov/sos/cec/elec/2009/ referendumbycounty. html (reporting 52.9% approval of Question 1, a "people's veto" of the Maine legislation).
83. In re Marriage Cases, 183 P.Sd 384 (Cal. 2008).
84. CAL. CONST, art. I, § 75.
85. See generally Human Rights Campaign, supra note 28. Additionally, Colorado, Hawauii, Maine, and Wisconsin have enacted state laws that provide some, but not all, spousal rights to same-sex couples, and New York recognizes same-sex marriages formed in other jurisdictions. Id
86. -531 U.S. 98 (2000).
87. Complaint, supra note 1.
88. See Cain, supra note 6, at 32-33 ("One cannot even tell under current Supreme Court jurisprudence whether marriage is a 'fundamental right' for purposes of substantive due process ... or whether it is only a fundamental right whose allocation must adhere to notions of equal protection.") ;
89. Ira C. Lupu, Untangling the Strands of the Fourteenth Amendment, 77 MICH. L. REV. 981, 982-85 (1979) ("[J]udicial selection of values for special protection against the majoritarian process has wavered ... between a liberty base and an equality base .... This doctrinal imprecision has bred unpredictability, disrespect, and charges of outcome-orientation.").
90. -388 U.S. 1 (1967).
91. Id. at 11.
92. Id.
93. Id. at 12.
94. Id. (internal quotation marks omitted).
95. See Karlan, Foreword, supra note 23, at 1448 ("Loving was not simply an equal protection case. Rather, the case represents a turning point as the Court moved from the completed project of imposing strict scrutiny on racial classifications toward a new project of applying strict scrutiny to limitations on fundamental rights.... Today, most courts and scholars see the Equal Protection and Due Process Qauses as discrete bases for strict scrutiny. But in Loving the two clauses operated in tandem.").
96. Loving 388 U.S. at 12;
97. see also Karlan, Foreword, supra note 23, at 1448-49
98. ("[I]n articulating its Due Process Clause-based argument the Court relied on Skinner v. Oklahoma, an equal protection decision, for the proposition that marriage 'is one of the basic civil rights of man.' ... This use of equal protection decisions to inform conceptions of liberty, and vice versa, was a hallmark of the Warren Court" (citation omitted)).
99. -316 U.S. 535 (1942).
100. Id. at 541.
101. Id.
102. "[I]f we had here only a question as to a State's classification of crimes, such as embezzlement or larceny, no substantial federal question would be raised." Id at 540.
103. Id. at 541.
104. -434 U.S. 374 (1978).
105. Id. at 390-91.
106. Id. at 384-85
107. (citing Loving and Skinner).
108. Zablocki also relied on Griswold v. Connecticut, 381 U.S. 479 (1965),
109. which had characterized marital privacy as lying within a zone of privacy created by several constitutional guarantees, and Bodthe v. Connecticut, 401 U.S. 371 (1971), a due process decision regarding access to divorce proceedings.
110. Id.
111. Id. at 384.
112. See Sunstein, supra note 6, at 2088 ("[T] he Court's ultimate holding [in Zablocki] turned on the fundamental rights branch of the equal protection doctrine, not on substantive due process.").
113. -482 U.S. 78, 95 (1987). The State apparently had conceded that the decision to marry was a fundamental right for non-inmates. See id.
114. Carlos Ball contends that the Supreme Court and the lower courts "all viewed the case solely from the perspective of due process and fundamental rights" and argues that Turner therefore is the case that most clearly supports the proposition that the state has a due process obligation to recognize at least some relationships as marital independendy of equal protection considerations that go to the issue of whether the state, once it recognizes some relationships as marital, has an equalitybased obligation to recognize others in the same way. Carlos A. Ball, The Positive in the Fundamental Right to Marry: Same-Sex Marriage in the Aftermath of Lawrence v. Texas, 88 MINN. L. REV. 1184, 1200 (2004). It is true that Turner does not include explicit discussion of a classification-based equal protection claim, but that does not answer the question whehter the Court's references to marriage as "fundamental" ground the decision in due process or the fundamental interests branch of equal protection jurisprudence. Notably, the Court relied upon Loving (as discussed above, a hybrid of equal protection and due process) and Zablocki (equal protection), suggesting to us that in fact it may well have been at least implicidy relying on something like an equal access theory.
115. The district court relied solely upon Zablocki for the proposition that marriage "involves fundamental human rights," Safley v. Turner, 586 F. Supp. 589, 594 (W.D. Mo. 1984),
116. while the Eighth Circuit cited to Loving Zablocki, Skinner, and Meye for the same assertion, Turner, 777 F.2d at 1313. Thus, the formal basis for the Turner holding is unclear. Moreover, the particular issue in the case turned on what level of scrutiny would be applied to prison regulations affecting inmates' constitutional rights, a question the Court never resolved because it found the marriage restrictions failed to pass even a rational relationship test.
117. Turner, 482 U.S. at 89 ("[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.").
118. Id. at 95-96.
119. Moreover, concurring and dissenting opinions sometimes differed from the majority concerning the most relevant constitutional provision. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 391-92 (1978) (Stewart, J., concurring in the judgment) (arguing that the law violates a freedom protected under the Due Process Clause, not a right to equal protection).
120. Cain, supra note 6, at 33.
121. See, e.g, Smelt v. County of Orange, 374 F. Supp. 2d 861, 877 (CD. Cal. 2005) ("It is undisputed there is a fundamental right to marry."
122. (citing Turner, 482 U.S. at 95;
123. Zablocki, 434 U.S. at 383-86;
124. and Loving v. Virginia, 388 U.S. 1, 12 (1967);
125. as well as Planned Parendiood v. Casey, 505 U.S. 833 (1992)));
126. Conaway v. Deane, 932 A.2d 571, 617 (Md. 2007) ("It is undisputed that the right to marry, in its most general sense, is a fundamental liberty interest that goes to the core of what the U.S. Supreme Court has called the right to 'personal autonomy.'");
127. Id. at 618 n.63 (citing the body of federal marriage precedents);
128. Lewis v. Harris, 908 A.2d 196, 207 (N.J. 2006) ("The right to marriage is recognized as fundamental by both our Federal and State Constitutions."
129. (citing Zablocki, 434 U.S. at 383-84;
130. and a New Jersey case, J.B. v. M.B., 783 A.2d 707, 716 (N.J. 2001)));
131. Hernandez v. Robles, 855 N.E.2d 1, 9 (N.Y. 2006) ("The right to marry is unquestionably a fundamental right"
132. (citing Zablocki, 434 U.S. at 384;
133. Loving 388 U.S. at 12;
134. and a New York case, Cooper v. Morin, 399 N.E.2d 1188, 1194 (N.Y. 1979)));
135. Andersen v. King County, 138 P.3d 963, 976 (Wash. 2006) ("The fundamental right to marriage 'is part of the fundamental right of privacy implicit in the Fourteendi Amendment's Due Process Clause.'"
136. (quoting Zablocki, 434 U.S. at 384)).
137. See, e.g., Hernandez, 855 N.E.2d at 9 ("In deciding the validity of legislation under the Due Process Clause, courts first inquire whether the legislation restricts the exercise of a fundamental right one that is 'deeply rooted in this Nation's history and tradition.'"
138. (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)));
139. see also Deane, 932 A.2d at 617 ("Our task in the present case, therefore, is to determine objectively whether the right to marry another person of th same sex is so deeply rooted in the history and tradition of this State, as well as the Nation as a whole, that 'neither liberty nor justice would exist if it were sacrificed.'"
140. (quoting Glucksberg, 521 U.S. at 721));
141. Lewis, 908 A.2d at 208 ("Thus we are concerned only with the question of whether the right to same-sex marriage is deeply rooted in this State's history and its people's collective conscience.");
142. Andersen, 138 P.3d at 976 (similar).
143. See, e.g, Smell, 374 F. Supp. 2d at 878 ("The history and tradition of the last fifty years have not shown the definition of marriage to include a union of two people regardless of their sex.");
144. Deane, 932 A.2d at 627 ("[T]he laws of our State historically, and continue to, employ sex-specific language that reflects Maryland's adherence to the traditional understanding of marriage as between a man and woman.");
145. Lewis, 908 A.2d at 209 ("Although today there is a nationwide public debate raging over whether same-sex marriage should be audiorized under the laws or constitutions of the various states, the framers of the 1947 New Jersey Constitution, much less the drafters of our marriage statutes, could not have imagined that the liberty right protected by Article I, Paragraph 1 embraced the right of a person to marry someone of his or her own sex.");
146. Hernandez, 855 N.E.2d at 9 ("The right to marry someone of the same sex, however, is not 'deeply rooted'; it has not even been asserted until relatively recent times.");
147. Andersen, 138 P.3d at 978 ("Nor is there a tradition or history of same-sex marriage in this state. Instead, prior to and after statehood, state laws reflected the common law of marriage between a man and woman.").
148. See, e.g., Standhardt v. Superior Court ex rel County of Maricopa, 77 P.3d 451, 458 (Ariz. Ct App. 2003) ("Implicit in Loving and predecessor opinions is the notion that marriage, often linked to procreation, is a union forged between one man and one woman.");
149. Lewis, 908 A.2d at 210 ("We add that all of the United States Supreme Court cases cited by plaintiffs, Loving Turner, and Zablocki, involved heterosexual couples seeking access to the right to marriage and did not implicate directly the primary question to be answered in this case.");
150. Andersen, 138 P.3d at 979 ("Federal decisions have found the fundamental right to marry at issue only where opposite-sex marriage was involved.").
151. To the extent that courts mention the possibility of heightened scrutiny under the Equal Protection Clause or state analogues, they typically reject that claim without separate analysis for the reasons they previously discussed in reference to the due process argument See, e.g., Hernandez, 855 N.E.2d at 10 ("The plaintiffs argue for strict scrutiny [under the Equal Protection Qause], on the ground that the legislation affects their fundamental right to marry-a contention we rejected above [in analyzing the Due Process claims]." (citation omitted)). In Andersen, the Washington Supreme Court performed its analysis under its state Equal Protection Clause analogue but relied on due process standards in determining whether marriage constituted a "fundamental right" 138 P.3d at 976-79.
152. This is typically how plaintiffs in the litigation have framed the right at issue. See, e.g., Deane, 932 A.2d at 619 ("Appellees seek a declaration that the right to marry encompasses the right to many a person of one's choosing without interference from the government, even if the other person is of the same sex.");
153. Lewis, 908 A.2d at 206 ("Plaintiffs maintain that the liberty interest at stake is 'the right of every adult to choose whom to marry without intervention of government'").
154. Lawrence v. Texas, 539 U.S. 558, 567 (2003).
155. Id. at 566-67. It is important to note, however, that Lawrence distinguished between the personal autonomy right at issue in that case and the separate issue of "whedier the government must give formal recognition to any relationship that homosexual persons seek to enter." Id at 578.
156. See Karlan, Foreword, supra note 23, at 1451 (arguing that the Lawrence Court "ratchet[ed] up the level of generality at which the liberty interest was described");
157. Cass R. Sustein, Liberty After Lawrence, 65 OHIO ST. LJ. 1059, 1071-72 (2004) (arguing that certain language in Lawrence undercuts the tradition-based defense of prohibitions on same-sex marriage).
158. Hernandez, 855 N.E.2d at 23 (Kaye, C.J., dissenting).
159. Sunstein, supra note 6, at 2085, 2119. Arbitrary line drawing also raises equality concerns, as several authors have noted, although our focus in this Section is on the implications of the decision for due process.
160. See Karlan, Foreword, supra note 23, at 1454-55 (demonstrating "the centrality of an equal protection sensibility to the [Lawrence] Court's due process analysis");
161. Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 MICH. L. REV. 459, 460-61 (2010) (showing how Lawrence bridged liberty and equality doctrines).
162. See Ball, supra note 71, at 1218-19 ("There is an obligation arising from Lawrence for the state to respect the dignity of lesbians and gay men; [and] that obligation ... will remain unfulfilled until ... the state gives full recognition to their committed relationships");
163. R.A. Lenhardt, Beyond Analogy: Perez v. Sharp, Antimiscegenation Law, and the Fight for Same-Sex Marriage, 96 CAL. L. REV. 839, 898 (2008) ("[I]t seems clear that, at a minimum, limitations on marriage for same-sex couples violate important principles of dignity.").
164. See cases cited supra notes 76-79. The Supreme Court of California is the one state high court that has identified a due process-derived right to marry that applied to same-sex couples. In re Marriage Cases, 183 P.3d 384, 420 (Cal. 2008). The California court relied more heavily, however, on the state's separate constitutional protection of privacy, which had previously been recognized to include a right of personal autonomy applicable to marriage. See id. at 420 ("[T] he state constitutional right to marry, while presumably still embodied as a component of the liberty protected by the state due process clause, now also clearly falls within the reach of the constitutional protection afforded to an individual's interest in personal autonomy by California's explicit state constitutional privacy clause."). In contrast to federal and most other state decisions, previous California decisions had emphasized a liberty interest at stake in the constitutionally protected right to marry. Most notably, in Perez v. Sharp, which struck down the state's anti-miscegenation law more than fifteen years before the Supreme Court's decision in Loving the California Supreme Court characterized the relevant issue as the freedom "to join in marriage with the person of one's choice." 198 P.2d 17, 19 (Cal. 1948);
165. cf. Lenhardt, supra note 87, at 844-45 (arguing that the Perez court's framing of the issue provides much stronger support for marriage rights for same-sex couples dian the Loving Court's approach). Subsequendy, however, even the California Supreme Court held that-in light of the later-enacted constitutional amendment limiting marriage to different-sex couples-the constitutional due process and privacy guarantees could be satisfied by access to a legal status equivalent to marriage.
166. Strauss v. Horton, 207 P.3d 48 (Cal. 2009).
167. Additionally, in one of the first "modern" challenges to different-sex marriage requirements, a lower court in Alaska relied in part on federal due process cases in concluding that a prohibition on samesex marriage could violate the state's constitutional guarantee of a right to privacy, but the case was subsequently mooted by a constitutional amendment Brause v. Bureau of Vital Statistics, No. 95-6562, 1998 WL 88743, at *3-5 (Alaska Super. Ct 1998),
168. superseded by constitutional amendment, ALASKA CONST, art. I, §25.
169. -262 U.S. 390 (1923). Earlier, in Maynard v. Hill, the Court mentioned in passing that marriage recognized "the most important relation in life." 125 U.S. 190, 205 (1888).
170. See id. at 399 (holding that the liberty interest guaranteed by the Due Process Clause includes "the right of the individual ... to marry, establish a home and bring up children");
171. see also Pierce v. Soc'y of Sisters, 268 U.S. 510, 534-35 (1925) (asserting that legislation may not "unreasonably interfere[] with the liberty of parents and guardians to direct the upbringing and education of children under their control").
172. Skinnerv. Oklahoma, 316 U.S. 535, 541 (1942).
173. Loving v. Virginia, 388 U.S. 1, 12 (1967).
174. Zablocki v. Redhail, 434 U.S. 374, 386 (1978) (citations omitted).
175. Turner v. Safley, 482 U.S. 78, 95-96 (1987).
176. Id. at 96.
177. See, e.g, Dean v. District of Columbia, 653 A.2d 307, 363 (D.C. 1995) (Steadman, J., concurring) ("While plainly the marriage state involves far more, the Supreme Court teaches that at bottom the institution reflects considerations 'fundamental to the very existence and survival of the [human] race,'
178. [Skinner, 316 U.S. at 541,] and bound up with sexual relations, procreation, childbirth and child rearing."
179. (citing Zablocki, 434 U.S. at 386));
180. Conaway v. Deane, 932 A.2d 571, 619 (Md. 2007)
181. (noting mat prior Supreme Court cases concerning marriage, including Loving Boddie, Zablocki, Turner, and Skinner, "do not represent a compelling basis to extend the fundamental right to include same-sex marriage... [because] [a]ll of the cases infer that the right to marry enjoys its fundamental status due to the male-female nature of the relationship and/or the attendant link to fostering procreation of our species");
182. Andersen v. King County, 138 P.3d 963, 978 (Wash. 2006) (citing Skinner, Loving, and Zablocki for the proposition that the fundamental right to marry does not extend to same-sex couples in part because "[n] early all United States Supreme Court decisions declaring marriage to be a fundamental right expressly link marriage to fundamental rights of procreation, childbirth, abortion, and child rearing");
183. cf. Bowers v. Hardwick, 478 U.S. 186, 190-91 (1986) ("[N]one of the rights announced in
184. [earlier privacy cases including Meyer, Skinner, Loving Griswold, and Eisenstadt] bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy ... [because] [n]o connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated ...."),
185. overruled by Lawrence v. Texas, 539 U.S. 558 (2003).
186. See infra subsection III.E.1.
187. Today, while some criminal fornication laws remain on the books, prosecutions are extremely rare and might well violate modern constitutional principles. See, e.g., Martin v. Ziherl, 607 S.E.2d 367, 371 (Va. 2005) (applying the reasoning in Lawrence to strike down a state anti-fornication statute).
188. -381 U.S. 479, 485-86 (1965) ("Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.").
189. Zablocki, 434 U.S. at 386;
190. see also supra text accompanying notes 66-69. As noted above, Turner does suggest several other grounds for recognizing the fundamental importance of marriage. See supra text accompanying note 73. Notably, however, most of the factors identified by the court-government benefits and public recognition-are closer to other fundamental interests recognized under the Equal Protection Clause dian to the "privacy" rationales that justify other due process family rights. See discussion infra Part III.
191. U.S. 438, 453 (1972). Eisenstadt was formally decided on equal protection grounds. The Court claimed that it did not need to reach the question whether the statute at issue-which permitted married persons but not unmarried persons to access contraceptives for the purpose of preventing pregnancy-impinged on the fundamental liberty interests identified in Griswold because it held that the distinction failed to satisfy even rational basis review. Id. at 447 n.7. Because rational basis review is usually extremely deferential, it makes sense to suspect that the law's invalidation had something to do with the status of the right It is therefore possible to think of Eisenstadt as a case concerning the unequal allocation of a fundamental interest. See, e.g., Cain, supra note 6, at 34 (arguing that "Eisenstadt belongs in the 'fundamental rights' branch of equal protection cases"). Notably, the Court implied that the liberty interest at issue was the same for married persons and single persons: "[W]hatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and married alike... [because] [i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id at 453 (first emphasis added). The Court did, however, also suggest that states could permissibly criminalize sex between unmarried persons under fornication laws. Id at 449-50.
192. Lawrence v. Texas, 539 U.S. 558, 567 (2003).
193. See generally, e.g., John Witte, Jr., Ishmael's Bane: The Sin and Crime of Illegitimacy Reconsidered, 5 PUNISHMENT & SOCY 327 (2003) (reviewing the history of the treatment of illegitimacy in early modern Anglo-American common law and early American statutory schemes).
194. See id. at 334.
195. SEE MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND THE FAMILY IN NINETEENTH-CENTURY AMERICA 197, 207 (1985).
196. See id.
197. See HARRYD. KRAUSE, ILLEGITIMACY: LAW AND SOCIAL POUCY 22-23 (1971).
198. See id. at 29-30.
199. See 405 U.S. 645, 658 (1972) (requiring procedural safeguards before terminating a nonmarital biological father's relationship with his children). See generally, e.g., Michael H. v. Gerald D., 491 U.S. 110 (1989) (reviewing doctrine recognizing a due process-protected liberty interest in a nonmarital biological father's relationship with his children, although permitting a marital father's interest to trump a nonmarital biological father's interests in certain circumstances).
200. See, e.g, Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 173-76 (1972) (holding that a denial of workers' compensation benefits to unacknowledged nonmarital children in favor of the father's marital children violated the Equal Protection Qause);
201. Glona v. Am. Guarantee & Liab. Ins. Co., 391 U.S. 73, 76 (1968) (striking down a law barring a mother from recovering in an action based on the wrongful death of her illegitimate child);
202. Levy v. Louisiana, 391 U.S. 68, 72 (1968) (overturning a law barring an illegitimate child from recovering in an action based on the wrongful death of his or her mother).
203. See UNIF. PARENTAGE ACT §201 (2000) (amended 2002), available at http:// www.law.upenn.edu/bll/archives/ulc/upa/final2002.htm. The UPA preserves the marital presumption that a child born to a married woman is the child of her husband, id. § 204(a)(1), but permits the presumption to be rebutted in an action brought within two years of the birth by the presumed father, the mother, or any other person, id §607.
204. There are many other grounds on which to challenge the responsible procreation argument, most notably that excluding same-sex couples from marriage in no way affects the state's interest in encouraging heterosexual couples who may accidentally bear children to marry. See infra subsection III.E.1. For other critiques of the responsible procreation argument, see, for example, Kerry Abrams & Peter Brooks, Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation, 21 YALE J.L. & HUMAN. 1 (2009), and
205. Edward Stein, The Accidental Procreation Argument for Withholding Legal Recognition for Same-Sex Relationships, 84 CHI.-KENT L. REV. (forthcoming 2010) (draft on file with authors).
206. STEPHANIE J. VENTURA, NAT'L CTR. FOR HEALTH STATISTICS, NCHS DATA BRIEF NO. 18, CHANGING PATTERNS OF NONMARITAL CHILDBEARING IN THE UNITED STATES (2009), available at http://www.cdc.gov/nchs/data/databriefs/dbl8.pdf.
207. See, e.g., Judith F. Daar, Accessing Reproductive Technologies: Invisible Barriers, Indelible Harms, 23 BERKELEYJ. GENDER, L. & JUST. 18, 25-35 (2008) (discussing the growing use of artificial insemination in the United States).
208. See, e.g, WlLUAM N. ESKRIDGE, JR., THE CASE FOR SAME-SEX MARRIAGE: FROM SEXUAL LIBERTY TO QVIUZED COMMITMENT 123-30 (1996) (arguing that due process, along with equal protection, could ground a constitutional right to marry for same-sex couples).
209. Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925).
210. Lawrence v. Texas, 539 U.S. 558 (2003).
211. Eisenstadt v. Baird, 405 U.S. 438 (1972) (unmarried couples);
212. Griswold v. Connecticut, 381 U.S. 479 (1965) (married couples).
213. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
214. Moore v. City of East Cleveland, 431 U.S. 494 (1977).
215. See Harris v. McRae, 448 U.S. 297, 326 (1980) (upholding a federal law banning the use of federal Medicaid funds for most abortions);
216. Maher v. Roe, 432 U.S. 464, 480-81 (1977) (upholding a state law that granted Medicaid benefits for childbirth but not for nontherapeutic abortions);
217. cf. Robin L. West, From Choice to Reproductive Justice: De-Constitutionalmng Abortion Rights, 118 YALE L.J. 1394 (2009) (arguing that a cost of the liberty-derived status of abortion rights is that it absolves the state of a responsibility to provide support for pregnancy or parenting).
218. See Norwood v. Harrison, 413 U.S. 455, 462 (1973) (holding that even though parents have a constitutional right to send their children to private school, they do not have a right to equal government support of private schools);
219. Meyer v. Nebraska, 262 U.S. 390, 402 (1923) (holding that even though a state could not forbid private schools from teaching foreign languages before the eighth grade, it could exclude German classes from its public school curriculum);
220. cf. Nelson Tebbe, Excluding Religion, 156 U. PA. L. REV. 1263, 1282-83 (2008) (drawing on those cases to argue against a constitutional right to equal government support of religious exercise).
221. Of course, marriage itself predates government licensing; throughout much of history, marriage was regulated through societal conventions (that arguably helped establish government entities), private contract, and religious law.
222. See generally, e.g., Abrams & Brooks, supra note 112, at 1, 6-8 (discussing how the concept of marriage relationships predates state regulation of marriage);
223. Mary Anne Case, Marriage Licenses, 89 MINN. L. REV. 1758, 1766-67 (2005) ("The state has been a relative latecomer in the regulation of marriage").
224. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 954 (Mass. 2003).
225. Sunstein, supra note 6, at 2082.
226. See, e.g, Elizabeth S. Scott, A World Without Marriage, 41 FAM. L.Q. 537, 558-62 (2007) (examining marriage's privileged social status).
227. Strong arguments may be made that some of these other fundamental rights raise significant equality concerns as well. See, e.g., Jack M. Balkin, Abortion and Original Meaning 24 CONST. COMMENT. 291, 292 & n.3 (2007) (arguing for an equal citizenship or antisubordination approach to the right to terminate a pregnancy, and citing others who have made similar equality arguments).
228. In this way, we disagree with the Goodridge court, which thought that the fact that a state could abolish civil marriage altogether cut not only against a due process analysis, but also against an equal access approach. 798 N.E.2d at 957 n.14 ("The 'right to marry' is different from rights deemed 'fundamental' for equal protection and due process purposes because the State could, in theory, abolish all civil marriage ...." (emphasis added) (citations omitted)).
229. See Sunstein, supra note 6, at 2095-96 (arguing that a state move to abolish private efforts to create the expressive equivalent of state-sponsored marriage "would be unconstitutional, under the Free Exercise Clause, as applied to religious institutions," and that it would also be invalid as to nonreligious unions under the Due Process Qause). We recognize that some state laws prohibit not only certain civil marriages, such as those for gay and lesbian couples, but also criminalize some private marriages, such as those between multiple spouses or close family members. Although such laws are beyond the scope of our discussion here, which is focused on civil marriage, an implication of our analysis is that laws restricting at least some types of private marriages may well require strong state justification if the right to private marriage bears a close enough resemblance to other family-related due process rights.
230. See, e.g, Vamum v. Brien, 763 N.W.2d 862, 905-06 (Iowa 2009) ("[O]ur constitutional principles ... require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle remain unaffected, and people can continue to associate with the religion that best reflects their views."). In our conclusion that institutions could continue to make their own determination whether to celebrate marriages for same-sex couples, we are thinking of churches, synagogues, mosques, secular humanist organizations, and similar institutions. It would be another matter, of course, if institutions that typically do not celebrate marriages sought to define marriage more restrictively than the state. For instance, if private employers chose to recognize only certain marriages for the purpose of distributing benefits, antidiscrimination rules might properly come into play; such actions might also violate other constitutional or statutory provisions, such as Title VII or state or local employment discrimination laws. We also note that religious institutions may not need to rely on due process because of the ready avaliability of free exercise arguments.
231. See generally SAME-SEX MARRIAGE AND REUGIOUS LIBERTY: EMERGING CONFUCTS, at xii (Douglas Laycock et al. eds., 2008).
232. See, e.g., N.H. REV. STAT. ANN. §457:37 ("Each religious organization, association, or society has exclusive control over its own religious doctrine, policy, teachings, and beliefs regarding who may marry within their faith.").
233. See In re Marriage Cases, 183 P.3d 384, 432 (Cal. 2008). The California Supreme Court, the only court to hold that failure to permit same-sex couples to marry violates a state due process provision, offered a detailed assessment of the complexity of these issues. In the case that overturned the state's statutory different-sex marriage requirements, the court suggested that the right to marry included a positive right to state recognition of certain intimate relationships, such as marriage, and that the state could not simply abolish marriage. Id at 426 & n.42. Later in the opinion, however, the court suggested that a potential remedy for the constitutional violation could be to substitute a separate, uniform designation that would apply to both same-sex and different-sex couples.
234. Id. at 453;
235. see also Melissa Murray, Equal Rites and Equal Rights, 96 CAL. L. REV. 1395, 1399-1401 (2008) (discussing this possibility).
236. Notably, in Strauss v. Horton, the court subsequendy held that a constitutional amendment that limited marriage to different-sex couples was constitutionally permissible, in large part because same-sex couples had access to the rights and obligations of marriage through a separate domestic partnership status. 207 P.3d 48, 74-77 (Cal. 2009).
237. For academic perspectives, see, for example, MARRIAGE PROPOSALS: QUESTIONING A LEGAL STATUS (Anita Bernstein ed., 2006);
238. Cain, supra note 6;
239. Edward A. Zelinsky, Deregulating Marriage: The Pro-Marriage Case for Abolishing Civil Marriage, 27 CARDOZO L. REV. 1161 (2006). The approach is gaining at least some political traction.
240. See, e.g., Lisa Rein, Bill Would End Civil Marriage, Create Domestic Partnerships, WASH. POST, Feb. 5, 2008, at B4 (discussing a bill proposed in Maryland to replace "marriage" with faimly "partnerships" that would be available to both different- and same-sex couples).
241. This solution would solve the equal protection problem we believe lies in creating separate statuses, such as civil unions, solely for same-sex couples while continuing to permit different-sex couples to marry. See infra Section III.E. However, we take no position on whether it would be preferable to move toward civil unions for everyone or to permit both same-sex and different-sex couples to marry civilly. For a thoughful consideration of some of the pros and cons, see Scott, supra note 126, at 537, 551-65.
242. See Cain, supra note 6, at 42-43 (concluding that civil marriage could be abolished consistent with the Constitution). It is possible to imagine an argument that eliminating civil marriage would violate substantive due process because access to government-recognized marriage has become embedded in the American understanding of intimate relationships. Yet it would be difficult for that argument to succeed, particularly in the context of a state that had
243. Id. at 2095.
244. David D. Meyer, A Privacy Right to Public Recognition of Family Relationships? The Cases of Marriage and Adoption, 51 VILL. L. REV. 891, 892 (2006). Meyer recognizes the "basic irony" in the claim, and that it would "push constitutional privacy onto distinctly different ground," but presents it as a way of reconciling otherwise confusing precedent Id.
245. Ball, supra note 71, at 1203-07 (arguing that even if the Due Process Clause primarily protects negative rights, "the fundamental right to marry stands as an important exception").
246. E.g, City of Qeburne v. Qeburne Living Ctr., Inc., 473 U.S. 432, 439 (1985) ("[A]ll persons similarly situated should be treated alike.").
247. See, e.g, Tigner v. Texas, 310 U.S. 141, 147 (1940) ("The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.").
248. See, e.g, Cleburne, 473 U.S. at 440 ("The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest").
249. Id.
250. Religion has been included in the list of suspect classifications, albeit in dicta. See, e.g, City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam) (characterizing as presumptively invalid classifications "drawn upon inherently suspect distinctions such as race, religion, or alienage").
251. Cleburne, 473 U.S. at 440.
252. See, e.g., Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 423 (Conn. 2008) (adopting federal equal protection methodology for adjudication under the state equality provision).
253. See, e.g., id. at 461 (applying these factors to conclude that discrimination on the basis of sexual orientation merits heightened scrutiny);
254. Varnum v. Brien, 763 N.W.2d 862, 889-96 (Iowa 2009) (same).
255. But see, e.g., Andersen v. King County, 138 P.3d 963, 975 (Wash. 2006) (holding that sexual orientation is not a suspect class because it is not immutable and "gay and lesbian persons are not powerless but, instead, exercise increasing political power").
256. See In re Marriage Cases, 183 P.3d 384, 440-41 (Cal. 2008) ("By Umiting marriage to opposite-sex couples, the marriage statutes, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation.");
257. see also, e.g, Smelt v. County of Orange, 374 F. Supp. 2d 861, 875 n.20 (CD. Cal. 2005) (noting that different-sex marriage restrictions implicitly classify on the basis of sexual orientation);
258. Kerrigan, 957 A.2d at 431 n.24 (same);
259. Varnum, 763 N.W.2d at 885 (same);
260. Conaway v. Deane, 932 A.2d 571, 605 (Md. 2007) (same);
261. Hernandez v. Robles, 855 N.E.2d 1, 11 (N.Y. 2006) (same).
262. In re Marriage Cases, 183 P.3d at 442-44, 446-52;
263. Kerrigan, 957 A.2d at 432-481;
264. Varnum, 963 N.W.2d at 889-904.
265. See CAL. CONST, art I, §7.5 ("Only marriage between a man and a woman is valid or recognized in California."); see
266. also Strauss v. Horton, 207 P.3d 48, 122 (Cal. 2009) (holding that the constitutional amendment is permissible but that marriages of same-sex couples prior to its enactment remain valid).
267. Lewis v. Harris, 908 A.2d 196, 217-21 (N.J. 2006);
268. Baker v. State, 744 A.2d 864, 884-86 (Vt 1999).
269. See Lewis, 908 A.2d at 222 ("We will not presume that a difference in name alone is of constitutional magnitude.");
270. Baker, 744 A.2d at 886 ("We hold only that plaintiffs are entided ... to obtain the same benefits and protections afforded by Vermont law to married opposite-sex couples.").
271. See Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 961 (Mass. 2003) (holding that the marriage statute did not survive rational basis review). In Goodridge, the court did not resolve whether the constitutional infirmity could be fixed by providing the rights and benefits of marriage through some other status, but the court ultimately held that the state could not Umit "marriage" to different-sex couples while creating "civil unions" for same-sex couples.
272. Opinions of the Justices to the Senate, 802 N.E.2d 565, 572 (Mass. 2004).
273. -517 U.S. 620, 635 (1996).
274. See Lawrence v. Texas, 539 U.S. 558, 567 (2003) (concluding that "liberty protected by the Constitution" includes the liberty for adults to make choices regarding intimate conduct with another person within the home);
275. Id. at 586 (Scalia, J., dissenting) ("[N]owhere does the Court's opinion declare that homosexual sodomy is a 'fundamental right' under the Due Process Qause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a 'fundamental right'").
276. See William D. Araiza, New Groups and Old Doctrine: Rethinking Congressional Power to Enforce the Equal Protection Clause, 37 FtA. ST. U. L. REV. (forthcoming 2010) (manuscript at 3 & n.12, 18 & n.122) (citing cases), available at http://ssrn.com/ abstract=1461447.
277. See Hernandez v. Robles, 855 N.E.2d 1, 11 (N.Y. 2006) (holding that, at least as applied to marriage, classification on the basis of sexual orientation does not require heightened scrutiny because it relates to the state's legitimate interests in serving children).
278. See Andersen v. King County, 138 P.3d 963, 974 (Wash. 2006) (holding that sexual orientation classifications did not require heightened scrutiny because plaintiffs had not established sexual orientation as an immutable trait).
279. See Conaway v. Deane, 932 A.2d 571, 609-14 (Md. 2007) (holding that heightened scrutiny is not applicable because lesbians and gay men are not politically powerless).
280. See Morrison v. Sadler, 821 N.E.2d 15, 21-22 (Ind. Ct App. 2005) (applying rational basis review to a marriage statute on the ground that, under the Indiana Constitution, all classifications are subject to rational basis review).
281. See, e.g, Wilson v. Ake, 354 F. Supp. 2d 1298, 1308-09 (M.D. Fla. 2005) (applying rational basis review and upholding DOMA).
282. See generally Deborah A. Widiss et al., Exposing Sex Stereotypes in Recent Same-Sex Marriage Jurisprudence, 30 HARV. J.L. & GENDER 461, 469-72 (2007) (discussing plaintiffs' briefing in recent same-sex marriage cases). Theorists have long claimed that discrimination on the basis of sexual orientation should be recognized as a form of sex discrimination.
283. See, e.g., Andrew Koppleman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994) (arguing that discrimination against homosexuals is sex discrimination because it perpetuates gender hierarchy);
284. Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 WIS. L. REV. 187 (claiming that animus against homosexual behavior preserves and reinforces the social meaning attached to gender). More recently, commentators have considered such sex discrimination claims specifically with respect to denial of marriage rights to same-sex couples.
285. See, e.g, Susan Frelich Appleton, Missing in Action? Searching for Gender Talk in the Same-Sex Marriage Debate, 16 STAN. L & POL'Y REV. 97 (2005) (exploring the "gender talk" that underlies arguments for retaining traditional marriage restrictions and the absence of a sex discrimination perspective in the debate over same-sex marriage);
286. Widiss, supra, at 479-87. But see Edward Stein, Evaluating the Sex Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L REV. 471 (2001) (arguing that the sex discrimination argument misstates the primary harm of discrimination against gay men and lesbians).
287. Baehr v. Lewin, 852 P.2d 44, 64-67 (Haw. 1993). A subsequent constitutional amendment rendered the ongoing appeal moot.
288. See HAW. CONST, art I, §23 (permitting the legislature to limit marriage to different-sex couples);
289. Baehr v. Miike, No. 20371, 1999 Haw. LEXIS 391, at *8 (Haw. Dec. 9, 1999) (holding that the amendment rendered the ongoing appeal moot).
290. See, e.g, In re Marriage Cases, 183 P.3d 384, 435-39 (Cal. 2008);
291. Conaway v. Deane, 932 A.2d 571, 585-602 (Md. 2007);
292. Hernandez v. Robles, 855 N.E.2d 1, 10 (N.Y. 2006);
293. Baker v. State, 744 A.2d 864, 880 n.13 (Vt 1999);
294. Andersen v. King County, 138 P.3d 963, 988 (Wash. 2006) (all rejecting the sex discrimination argument).
295. See Araiza, supra note 153 (manuscript at 3) ("[T]he Court has apparently sworn off creating new suspect classes, preferring instead to resolve new equal [protection] problems by varying the actual scrutiny accorded under the rational basis test but thereby essentially freezing the current doctrinal status of all non-suspect classes." (citation omitted)).
296. Karlan, for example, has made the following argument By contrast to the incremental possibilities of fundamental rights/due process-based strict scrutiny, suspect classification/equal protection-based strict scrutiny seems far more binary: either a group is entided to heightened scrutiny across the board or it isn't The Court may have feared that if it struck down Texas's statute on the ground that it violated the Equal Protection Qause to treat gay people differently from straight people, this would require it to invalidate all laws that treat gay and straight couples differently, the most obvious of which are laws restricting the right to marry.
297. Karlan, Foreword, supra note 23, at 1460. Now that federal courts find themselves confronted with the marriage question, analogous fears about other laws may drive them away from classification-based analyses.
298. See Widiss et al., supra note 159, at 487-98 (arguing that common justifications proffered for different-sex marriage requirements, such as a necessity for different sex role models for children or "responsible procreation," impermissibly rely on sex stereotypes).
299. See, e.g, Harper v. Va. Bd. of Elections, 383 U.S. 663, 666 (1966) (striking down a state poll tax under the Federal Equal Protection Clause).
300. See, e.g, Ross v. Moffitt, 417 U.S. 600, 606-07 (1974) (explaining that even though a state need not provide appellate review for criminal defendants at all, once it does, it must provide adequate access to the appellate system for indigent defendants).
301. -316 U.S. 535 (1942).
302. That was true even though a single conviction for larceny or embezzlement would trigger the same level of fines or imprisonment Id. at 542.
303. Id. at 541.
304. Today, after Griswold and Casey, there likely is a fundamental due process right to procreate that would be sufficient to justify the result in a case like Skinner. In 1942, however, the Court had turned sharply away from the doctrine of substantive due process, particularly in the economic realm. Justice Stone, concurring in Skinner, thought the case ought to be analyzed under due process, but only because the state law did not provide for a hearing to determine whether the prisoner's criminal tendencies could be inherited. Justice Stone, a principal supporter of the New Deal, would not have suggested a return to the era of substantive due process. See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
305. Zablocki v. Redhail, 434 U.S. 374 (1978).
306. Id. at 384-86 (quoting Maynard v. Hill, 125 U.S. 190, 205 (1888)).
307. Id. at 382-83. Justice Stewart concurred in the judgment but specifically disagreed with the Court's reliance on the Equal Protection Qause, arguing that the decision should instead have relied on due process. See id. at 391 (Stewart, J., concurring).
308. Id. at 383 (majority opinion).
309. See supra subsection I.D.I.
310. Cf. San Antonio Indep. Sch. Dist v. Rodriguez, 411 U.S. 1, 33-34 (1972) ("[I]t is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is 'fundamental' is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution."). The Court has never specified precisely what standard should be used to make this assessment However, the Court's prior statements in Zablocki are sufficient to support a holding that civil marriage is "fundamental." Additionally, civil marriage is a key aspect of how individuals construct a personal and familial identity, although it is no longer a prerequisite for lawful sexual intimacy or childbearing, as we have noted. Moreover, it is rarely differentiated from religious and private marriages, which probably are protected liberty interests under the Due Process Clause. Thus, unlike most other government programs, civil marriage is intimately intertwined with liberty interests that are protected by the Constitution, a point we return to in Sections III.B and III.C
311. See supra Section I.B; see also Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (locating the relevant right in various provisions of the Constitution). The confusion is further compounded by cases, such as Eisenstadt v. Baird, 405 U.S. 438 (1972), in which the Court struck down statutes on equal protection grounds for unequally interfering with liberty interests protected under the Due Process Clause. See supra note 101.
312. See Vacco v. Quill, 521 U.S. 793, 799 (1997) (suggesting that the Glucksberg test should govern whether a right or interest is fundamental in both contexts).
313. See supra note 80.
314. Zablocki v. Redhail, 434 U.S. 374, 387-88 (1978) ("When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only diose interests.").
315. Id. at 386.
316. See supra text accompanying notes 115-122.
317. See supra note 16; see also Bush v. Gore, 531 U.S. 98, 104 (2000) ("The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.");
318. Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178 (1875) ("[T]he Constitution of the United States does not confer the right of suffrage upon any one.").
319. U.S. 663, 667 (1966) (internal quotation marks omitted);
320. see also Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 629 (1969) (characterizing the right to vote as a matter of equal participation in state elections and noting that states have latitude to decide whether to hold elections at all, at least for "certain public officials");
321. Cain, supra note 6, at 35 (recognizing that although the right to vote in state elections is not constitutionally protected, there is a right to participate on an equal basis with other qualified voters once the state has opted to hold elections).
322. See Harper, 383 U.S. at 668 ("Lines drawn on the basis of wealth or property ... are traditionally disfavored.").
323. See San Antonio Indep. Sch. Dist v. Rodriguez, 411 U.S. 1, 28-29 (1973) (declining to recognize wealth as a suspect class and noting that "this Court has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny").
324. See, e.g, Dunn v. Blumstein, 405 U.S. 330, 337 (1972) ("[I]f a challenged statute grants the right to vote to some citizens and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest." (internal quotation marks omitted));
325. cf. Bush, 531 U.S. at 104-05 ("When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.... Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another."
326. (citing Harper, 383 U.S. at 665)).
327. See Kramer, 395 U.S. at 633 (invalidating a New York school board voting restriction);
328. Qpriano v. City of Houma, 395 U.S. 701, 706 (1969) (striking down a provision limiting the ability to vote on a bond issue for utilities to property owners).
329. See Dunn, 405 U.S. at 358 (overturning a minimum-residency-duration restriction on voting).
330. Burdick v. Takushi, 504 U.S. 428, 434 (1992) (internal quotation marks and citations omitted);
331. see also Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) (describing the distinction between constitutionally suspect restrictions and "reasonable, nondiscriminatory restrictions").
332. Crawford v. Marion County Election Bd., 128 S. Ct 1610, 1616 (2008) (plurality opinion);
333. cf. id. at 1624, 1626-27 (Scalia, J., concurring) (reserving strict scrutiny for regulations that severely burden the right to vote, and possibly for those intended to disadvantage a class, and applying a less demanding balancing test to others).
334. See generally Christopher S. Elmendorf, Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities, 156 U. PA. L. REV. 313, 329-30 (2007) (describing the Court's task in regulating electoral processes).
335. Ross v. Moffitt, 417 U.S. 600, 611 (1974).
336. Griffin v. Illinois, 351 U.S. 12, 19 (1956).
337. Douglas v. California, 372 U.S. 353, 357-58 (1963). Counsel is not constitutionally required on discretionary appeals.
338. Ross, 417 U.S. at 614-16.
339. Bodthe v. Connecticut, 401 U.S. 371, 382-83 (1971).
340. Little v. Streater, 452 U.S. 1 (1981).
341. M.L.B. v. S.L.J., 519 U.S. 102 (1996).
342. Lassiter v. Dep't of Soc. Servs., 452 U.S. 18 (1981).
343. See, e.g, M.L.B., 519 U.S. at 116 (citing Turner, Zablocki, Loving, Skinner, Pierce, and Meyer).
344. Id. at 116.
345. See infra text accompanying notes 248-252.
346. Ross v. Moffitt, 417 U.S. 600, 608-09 (1974).
347. M.L.B., 519 U.S. at 120
348. (quotingBearden v. Georgia, 461 U.S. 660, 666 (1983)).
349. Id. at 120 (alteration in original) (internal quotation marks omitted).
350. See supra Parts I-II.
351. Locke v. Davey, 540 U.S. 712, 720-21 (2004) (reasoning inter alia that the burden was not great when a student was denied a college tuition scholarship);
352. cf. Tebbe, supra note 122, at 1267 (arguing that excluding religious exercise from such ordinary government subsidies raises free exercise concerns less often than is generally believed, because free exercise ought to be understood primarily as a liberty right, and denials of subsidies usually do not raise liberty concerns).
353. Cf. Meyer, supra note 136, at 898 (arguing that denial of formal government recognition may constitute disruptive government intervention in private family relationships because it can in fact impair the dynamics of excluded relationships).
354. While, of course, some people choose not to marry in a civil ceremony, they can still be said to have an interest in access to that government institution.
355. Cf. Kenji Yoshino, The Pressure to Cover, N.Y. TIMES MAG., Jan. 15, 2006, at 32, 37 (arguing for a liberty approach to civil rights, partly on grounds of universality).
356. See Sunstein, supra note 6, at 2089-95 (distinguishing the right to participate in a civil marriage from a positive right).
357. See generally, e.g., GEORGE CHAUNCEY, WHY MARRIAGE? THE HISTORY SHAPING TODAY'S DEBATE OVER GAY EQUALITY (2004) (recounting discrimination against gays and lesbians in the last century).
358. Cf Romer v. Evans, 517 U.S. 620 (1996).
359. Karlan, Stereoscopic, supra note 23, at 474;
360. see also Karlan, Foreword, supra note 23, at 1463 (describing the Court's "stereoscopic" approach to protecting rights of gay and lesbian people, "in which understandings of equality inform[] definitions of liberty," and under which the Lawrence Court could strike down a selective ban on intimate conduct because "it had already implicitly recognized that gay people are entitled to equal respect for their choices about how to live their lives").
361. Cf. Nan D. Hunter, Living with Lawrence, 88 MINN. L. REV. 1103, 1103 (2004) ("Lawrence ... weaves together substantive due process and equal protection doctrine into a holistic analysis of the cultural weight of the individual rights involved. Liberty and equality are the two chords of the opinion.");
362. Karlan, Foreword, supra note 23, at 1449 ("Lawrence is a case about liberty that has important implications for the jurisprudence of equality.");
363. Tebbe &: Tsai, supra note 86, at 459-60 (showing how Lawrence bridged liberty and equality doctrines). Lawrence is not the only case to simultaneously advance both interests. Kennedi Karst has persuasively demonstrated that many of the Court's substantive due process decisions have concerned selective denial of freedoms to discrete groups and that "concerns about group subordination have profoundly influenced the doctrinal growth of substantive due process."
364. Kennedi L. Karst The Liberties of Equal Citizens: Groups and the Due Process Clause, 55 UCLA L. REV. 99, 102 (2007).
365. Goodridge v. Dep't of Pub. Health, 798 N.E.2d 941, 953 (Mass. 2003).
366. See supra text accompanying note 203-204.
367. Conaway v. Deane, 932 A.2d 571, 616 (Md. 2007)
368. (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).
369. Id. (quoting Palko v. Connecticut 302 U.S. 319, 325-26 (1937)).
370. See id at 617 (articulating the Maryland high court's preferred standard and quoting Griswold v. Connecticut, 381 U.S. 479, 493 (1965) (Goldberg, J., concurring)).
371. See supra text accompanying notes 76-80. The Supreme Court, like lower courts, has struggled to determine the level of generality that should be used to assess substantive due process claims. One of the most prominent examples is Michael H. v. Gerald D., a case considering the constitutionality of a state law providing that a child born to a married woman living with her husband was, in most cases, conclusively presumed to be the issue of the couple. 491 U.S. 110 (1989). The law was challenged by a biological father whose claim for visitation rights with his daughter had been denied on the ground that he was not her legal father-and could not pursue a claim to become her legal father-because the child's mother had been married to another man at the time when she was born, Id. at 113-15. In a notable, almost notorious, footnote, Justice Scalia argued that judges should "refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified." Id. at 127 n.6. Justice Scalia reasoned that the most specific available tradition in this case limited the rights of "adulterous natural" fathers in such situations. Id. He argued that if judges were permitted latitude to define the tradition in question more broadly-for example, in this case, protecting the interests of parents-they would be able to impose their own views on society, because traditions viewed at a more general level provide little guidance or constraint Id. Yet the footnote only drew the vote of one other Justice. Justices O'Connor and Kennedy specifically declined to join the footnote, even diough they endorsed the rest of Justice Scalia's plurality opinion. Id. at 132 (O'Connor, J., concurring, joined by Kennedy, J.).
372. They declined to join the footnote on the ground that several of the Court's decisions may not have defined the relevant right in the most specific way possible, and they cited as examples the marriage cases Loving v. Virginia, 388 U.S. 1 (1967), and Turner v. Safely, 482 U.S. 78 (1987), among other precedents. Id Justice Brennan, writing on behalf of four Justices, dissented and argued that a rigid conception of tradition would wrongly limit the ability of due process to check state law crafted by a majority. Rather, the liberty protected by due process "must include the freedom not to conform" to the majority's conception of the good life or the family, and Justice Scalia's approach "squashes this freedom by requiring specific approval from history before protecting anything in the name of liberty."
373. Id. at 141 (Brennan, J., dissenting).
374. Moreover, Justice Scalia's footnote relied heavily upon the Court's analysis in Bowers v. Hardwick, 478 U.S. 186,190-91 (1986),
375. which the Court subsequently overruled in Lawrence v. Texas, 539 U.S. 558, 567 (2003), in large part on the ground that it classified the right at issue too narrowly. For criticism of Justice Scalia's footnote,
376. see, for example, LAURENCE H. TRIBE & MICHAEL C DORF, ON READING THE CONSTITUTION 97-117 (1991);
377. J.M. Balkin, Tradition, Betrayal, and the Politics of Deconstruction, 11 CARDOZO L. REV. 1613, 1614-29 (1990);
378. Edward Gary Spidto, Note, A Critique of Justice Antonin Scalia's Approach to Fundamental Rights Adjudication, 1990 DUKE LJ. 1337, 1339.
379. See Sunstein, supra note 6, at 2085 (arguing that defining marriage narrowly suffers from the defect that it "seems to draw arbitrary lines");
380. Id.
381. (suggesting that defining the right to marry narrowly may be arbitrary "in principle"). On the difference between defining fundamental rights in due process doctrine and fundamental interests in equal protection, see supra text accompanying notes 177-179.
382. We believe that voting and court access offer the strongest analogies to civil marriage access, and accordingly, our analysis focuses on these fundamental interest cases. The "right to travel" doctrine is also sometimes located within the fundamental interest branch of equal protection law.
383. See Shapiro v. Thompson, 394 U.S. 618, 638 (1969) ("Since the classification here touches on the fundamental right of interstate movement its constitutionality must be judged by a stricter standard-"). In that context as well, the Court protected the right of welfare recipients to move from state to state, not because that specific interest was grounded in tradition, but because the more generalized right to travel was.
384. See id. at 642. More recently, the Court has suggested that the right to travel is better located in the Privileges and Immunities Clause.
385. Saenz v. Roe, 526 U.S. 489, 502-03 (1999).
386. Harper v. Va. Bd. of Elections, 383 U.S. 663, 669 (1966) ("[T]he Equal Protection Clause is not shackled to the political theory of a particular era.");
387. see also id. at 668-69 (observing that "[l]evy 'by the poll[]'... is an old familiar form of taxation" but insisting nevertheless that "[i]n determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality" (citations omitted)).
388. Id. at 669.
389. Griffin v. Illinois, 351 U.S. 12, 18 (1956) ("It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all. But that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty." (citation omitted)).
390. See, e.g., Crawford v. Marion County Election Bd., 128 S. Ct 1610, 1623 (2008) (holding that any burden that the state's identification requirement placed on voters was justified by governmental interests, such as avoiding voter fraud).
391. See Sunstein, supra note 6, at 2111-12 ("[T]he Equal Protection Clause is a selfconscious repudiation of traditions that embody illicit line-drawing, making distinctions that are arbitrary or invidious. The Equal Protection Qause stands for a commitment to public reason-giving that puts traditions to the test.... [T] he Due Process Clause has had a quite different function. The purpose of that clause has generally been to protect time-honored practices from governmental intrusion.").
392. See id. (arguing that the Lawrence Court defined the due process right according to emerging values, thereby generalizing tradition, and that by doing so the Court folded in "a kind of equal protection component" capable of questioning the way lines had been drawn around traditional institutions).
393. Loving v. Virginia, 388 U.S. 1, 12 (1967);
394. see also supra text accompanying notes 53-59.
395. See supra text accompanying notes 129-131130. The Supreme Court of Iowa makes this distinction explicit in its decision requiring the state to begin offering samesex couples the right to marry civilly on the grounds that the differential treatment of gays and lesbians lacked adequate justification. See Varnum v. Brien, 763 N.W.2d 862, 904-06 (Iowa 2009) ("In the final analysis, we give respect to the views of all Iowans on the issue of same-sex marriage-religious or odierwise-by giving respect to our constitutional principles [of equal protection for all]. These principles require that the state recognize bodi opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views."). Perhaps not coincidentally, the Iowa decision is the only unanimous state high court decision on the issue in recent years; other recent decisions, both those finding a constitutional violation and those denying the claim, have been issued by sharply divided courts.
396. A hypodietical law that discriminated on the basis of sexual orientation without imposing a substantial obstacle to civil marriage might well be unconstitutional on other grounds, but not under our equal access theory. In other words, this Article leaves to one side laws that discriminate against gay and lesbian couples without burdening the right to marry.
397. Zablocki v. Redhail, 434 U.S. 374, 386-87 (1978);
398. iee also Cain, supra note 6, at 35 n.44 ("[A]s the fundamental rights prong of equal protection analysis has been developed, the unequal allocation will be strictly scrutinized only if there is a 'direct and substantial' burden on the right"
399. (citing Montgomery v. Carr, 101 F.3d 1117, 1120-21 (6di Qr. 1996) (holding that anti-nepotism rules do not place a direct and substantial burden on marriage))).
400. See supra text accompanying note 190 (explaining that "reasonable, nondiscriminatory restrictions" on the right to vote may be permissible under Burdick v. Takushi, 504 U.S. 428 (1992),
401. and Anderson v. Celebrezze, 460 U.S. 780 (1983)).
402. the exchange in Crawford v. Marion County Election Bd, 128 S.Ct 1610 (2008), between the plurality, id. at 1616 n.8, and Justice Scalia's concurrence,
403. Id. at 1624-25 (Scalia, J. concurring).
404. Although Crawford ostensibly requires a relatively robust inquiry into whether regulations are related to voter qualifications, the support for the voter identification requirements it upheld was arguably quite weak, and powerful arguments can be made that the identification qualifications actually imposed a rather significant burden.
405. See id. at 1627-43 (Souter, J., dissenting);
406. Id. at 164345 (Breyer, J., dissenting). Thus, it is important to note a danger implicit in our approach: it requires courts to make judgment calls regarding whether a burden on marriage is substantial and whether it is even handed, as we discuss next Our hope is that judges would apply such standards responsibly. As we note in the next Section, courts have uniformly held that the government interests put forward to justify denying denial of marriage rights to same-sex couples are insufficient to pass any kind of heightened scrutiny.
407. -434 U.S. 47, 58(1977).
408. Id. at 53-54 (applying rational basis review).
409. Zablocki v. Redhail, 434 U.S. 374, 387 n.12 (1978) (adding that the social security condition in Jobst, unlike the regulation in Zablocki, "placed no direct legal obstacle in the path of persons desiring to get married").
410. See, e.g, Mapes v. United States, 576 F.2d 896 (Ct CL 1978) (upholding the marriage penalty in tax codes).
411. See, e.g, Moe v. Dinkins, 533 F. Supp. 623 (S.D.N.Y. 1981) (holding mat minimum-age restrictions delay, but do not deny, exercise of the right to marry). Even if courts deemed age requirements significant enough burdens to trigger a presumption of unconstitutionality, it is possible that the state's legitimate interest in ensuring sufficient mental capacity to commit to the responsibilities of marriage would be sufficient to justify diese requirements, particularly since they accord with numerous other areas of law in which minors are treated differently from adults. See infra subsection III.D.3 (discussing our third limit).
412. Karlan suggests that laws prohibiting bestiality, for instance, are less problematic because "that behavior is not tied as an empirical matter in contemporary America to membership in a recognized social group" and that "[b]y contrast, gay people in the United States do form a social group whose membership extends beyond their engaging in specific sexual acts." Karlan, Foreword, supra note 23, at 1458. In ther words, "statutes that target same-sex behavior are directed at a class whose primary characteristic is not its engagement in discrete acts but its existence as a subordinate social group." Id Karlan is speaking about the criminalization of sexual conduct here, but a similar distinction might be drawn between laws that disallow civil marriage between humans and animals, on the one hand, and same-sex marriage bans, on the other.
413. Sunstein, supra note 6, at 2083 (noting that states may prohibit people from entering into civil marriages with "their dog, their house, their refrigerator, July 21, or a rose petal").
414. Of course, this raises the question of what constitutes a group, exclusion of which would be sufficient to raise special evenhandedness concerns under our equal access approach. We do not think that a traditional suspect class is required; if it were, then the fundamental interest analysis would add nothing to the standard equal protection claim. At the same time, it is important to recognize that an exclusion that affects an actually existing social group defined primarily by activities other than getting married itself may require a stronger government rationale than a prohibition that only applies to people who wish to marry, say, their cars. We suggest there are at least three ways to define a group for these purposes, any of which would help gay and lesbian couples seeking access to civil marriage. First, a group might be identified by evidence of historical or contemporary animus or discrimination against them. In this sense, equal access analysis would respond to the classic concern that legislative or popular majorities may offer inadequate protection to disadvantaged or disfavored minorities.
415. We know from other cases concerning gay rights, such as Romer v. Evans, 517 U.S. 620 (1996),
416. and Lawrencev. Texas, 539 U.S. 558 (2003), that the Court has acknowledged that differential treatment of gay men and lesbians may be reason for special concern, even though the Court has stopped short of declaring sexual orientation to be constitutionally suspect for all purposes. Second, a group might be identified for our purposes by reference to a longstanding or widespread social movement Without a doubt, grassroots campaigns have furthered the fight for gay rights, and their impact has been felt in legislatures as well as in courts and in the wider culture. The same cannot be said for people who wish to marry, for example, their cars. Finally, social status may play an important role in identifying the sort of group that must presumptively be given equal access to fundamentally important government programs. Status groups can be organized around common lifestyles or cultural attributes, but regardless of how diey are organized, dieir members share a particular level of social respect or esteem.
417. SeeJ.M. Balkin, The Constitution of Status, 106 YALE LJ. 2313, 2322-23 (1997) (defining a status group). Much more could be said here. Our point is simply that however the term "group" is defined, gay men and lesbians qualify. Courts could properly consider this as an important factor in assessing whether the government can provide adequate justification for selectively denying same-sex couples access to civil marriage.
418. Harper v. Va. State Bd. of Elections, 383 U.S. 663 (1966).
419. See, e.g., M.L.B. v. S.L.J., 519 U.S. 102 (1996) (holding that an indigent litigant had a right to a transcript for appeal from termination of parental rights);
420. Douglas v. California, 372 U.S. 353 (1963) (holding that individuals had a right to counsel on direct criminal appeal). See generally supra text accompanying notes 193-201.
421. Zablocki v. Redhail, 434 U.S. 374, 375 (1978).
422. See Karlan, Foreword, supra note 23, at 1457 (noting that "the fact that the law explicitly targets behavior and not persons does not mean that it is not also class legislation" and analogizing to late nineteenth-century voter-eligibility statutes that excluded blacks from elections).
423. See, e.g., Harper, 363 U.S. at 668 ("Lines drawn on the basis of wealth or property, like those of race, are traditionally disfavored." (citation omitted)).
424. -411 U.S. 1, 28 (1973) (concluding that the Texas school-funding system, which provided less support to children living in districts with lower property values, did not "operate to the peculiar disadvantage of any suspect class").
425. -519 U.S. at 124 (quoting Griffin v. Illinois, 351 U.S. 12, 24 (1956) (Frankfurter, J., concurring)).
426. Id. at 114-15.
427. As noted above, the majority in M.L.B. explicitly acknowledges that in this line of cases, "[d]ue process and equal protection principles converge." Id at 120
428. (quoting Bearden v. Georgia, 461 U.S. 660, 665 (1983)). Indeed, the dissent takes issue with this, contending that if "neither [the Due Process nor the Equal Protection] Clause affords petitioner the right to a free, civil-appeal transcript, [one must] assume that no amalgam of the two does."
429. Id. at 130 (Thomas, J., dissenting).
430. The Court was arguably motivated by similar concerns when it held that public education could not be denied to undocumented immigrants, even though education is not a fundamental right and the state generally has considerable discretion in how it regulates immigration. See Plyler v. Doe, 457 U.S. 202, 223 (1982) ("[M] ore is involved in these cases than the abstract question whether [the statute] discriminates against a suspect class, or whether education is a fundamental right.... By denying these children a basic education, we deny them the ability to live within the structure of our civic institutions.").
431. Cf. M.L.B., 519 U.S. at 125 (distinguishing the Court's holding that a state must provide funding to indigent people appealing a decision that terminates parental rights from cases in which the Court held that the government need not provide funds for the exercise of fundamental rights "in economic circumstances that existed apart from state action"). Excluding religious exercise from government support therefore also raises different questions. Cf. Tebbe, supra note 122 (arguing against a free exercise right to equal government support of religious exercise).
432. Moreover, the key is not whether the legislation at issue discriminates facially but whether, under a common-sense understanding of its application, it selectively denies a recognized group access to fundamentally important institutions. Poll taxes and court-access fees, for example, did not explicitly exclude individuals on the basis of their wealth. Nonetheless, the Court quite comfortably concluded that their deleterious effects were borne by the poor. This distinction matters. Supporten of differentsex marriage requirements sometimes argue that they impose limitations that apply evenhandedly to everyone, in that both straight and gay persons may marry persons of the opposite sex. As discussed above, that argument is effectively foreclosed by Loving in which the Court rejected Virginia's argument that its anti-miscegenation law prohibited everyone from marrying outside dieir own race, not just African Americans.
433. Loving v. Virginia, 388 U.S. 1, 8 (1967) ("[W]e reject the notion that mere 'equal application' of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's protection of all invidious racial discriminations ..."). Unsurprisingly, when faced with standard classification-based equal protection claims, both federal and state courts have consistently recognized the reality that different-sex marriage requirements do differentiate on the basis of sexual orientation in that gays and lesbians, as opposed to heterosexuals, may not marry the partner of their choice. See supra note 145 and accompanying text. This is true even though courts have split on the secondary question of whether such distinctions are inherendy suspect. See supra notes 146-148 and notes 154-158 and accompanying text
434. However, it is important to note that some polygamous relationships eschew hierarchy and are truly consensual. Accordingly, serious inquiry might be merited regarding the constitutionality of upholding an absolute ban. See generally Elizabeth F. Emens, Monogamy's Law: Compulsory Monogamy and Polyamorous Existence, 29 N.Y.U. REV. L. & SOC. CHANGE 277 (2004).
435. Note, however, that some incest laws prohibit marriages or sexual relations between individuals, such as step-siblings or persons related through adoption, that do not pose such genetic risks. See, e.g, TENN. CODE ANN. §39-15-302 (1997). Permitting such relationships may implicate other concerns regarding whether the relationship is truly consensual, but again, further consideration would be merited.
436. Cf. Israel v. Allen, 577 P.2d 762 (Colo. 1978) (finding unconstitutional an incest law prohibiting marriage between adoptive siblings because it was not rationally related to a legitimate state interest).
437. Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451, 462-63 (Ariz. Ct App. 2003);
438. Morrison v. Sadler, 821 N.E.2d 15, 24-26 (Ind. Ct App. 2005);
439. Conaway v. Deane, 932 A.2d 571, 633-34 (Md. 2007);
440. Hernandez v. Robles, 855 N.E.2d 1, 7-8 (N.Y. 2006);
441. Andersen v. King County, 138 P.3d 963, 983 (Wash. 2006).
442. See Stein, supra note 112 (manuscript at 102-14) (discussing early cases that relied upon this argument).
443. Smelt v. County of Orange, 374 F. Supp. 2d 861, 880 (CD. Cal. 2005) ("The Court finds it is a legitimate interest to encourage the stability and legitimacy of what may reasonably be viewed as the optimal union for procreating ....").
444. Hernandez, 855 N.E.2d at 8.
445. See Andersen, 138 P.3d at 983 ("[G]iven the rational relationship standard and that the legislature was provided with testimony that children dirive in opposite-sex marriage environments, the legislature acted within its power to limit the status of marriage.");
446. see also id. at 1005 (Johnson, J., concurring) ("The legislature was offered evidence that children tend to dirive best in families consisting of mothers, fathers, and their biological children.").
447. See, e.g., Smelt, 374 F. Supp. 2d at 880 ("DOMA is rationally related to the legitimate government interest... of encouraging the creation of stable relationships that facilitate rearing children by both biological parents.").
448. See, e.g, Conaway v. Deane, 932 A.2d 571, 629 (Md. 2007) ("Under [the rational basis review] standard, 'the State[] [is afforded] a wide scope of discretion .... A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.'" (second and third alterations in original)
449. (quoting McGowan v. Maryland, 366 U.S. 420, 425-26 (1961))).
450. Even the dissenters in Lawrence acknowledge that "encouragement of procreation" could not "possibly" be a justification for denying same-sex couples the right to marry "since the sterile and the elderly are allowed to marry."
451. Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia.J., dissenting).
452. Hernandez, 855 N.E.2d at 30 (Kaye, C.J., dissenting);
453. see also In re Marriage Cases, 183 P.3d 384, 452 (Cal. 2008) ("While retention of the limitation of marriage to opposite-sex couples is not needed to preserve the rights and benefits of opposite-sex couples, the exclusion of same-sex couples from the designation of marriage works a real and appreciable harm upon same-sex couples and their children.").
454. Hernandez, 855 N.E.2d at 8.
455. See, e.g, COMM. ON LESBIAN, GAY, & BISEXUAL CONCERNS ET AL., AM. PSYCHOLOGICAL ASS'N, LESBIAN AND GAY PARENTING 15 (2005) ("[E]vidence to date suggests that home environments provided by lesbian and gay parents are as likely as diose provided by heterosexual parents to support and enable children's psychological growth.");
456. Gregory M. Herek, Legal Recognition of Same-Sex Relationships in the United States: A Social Science Perspective, 61 AM. PSYCHOLOGIST 607, 613 (2006) ("Empirical studies comparing children raised by sexual minority parents with diose raised by odierwise comparable heterosexual parents have not found reliable disparities in mental health or social adjustment");
457. Ruth Ullmann Paige, Proceedings of the American Psychological Association for the Legislative Year 2004, 60 AM. PSYCHOLOGIST 436, 496 (2005) ("[R]esearch has shown that adjustment, development, and psychological well-being of children is unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish.");
458. Ellen C Perrin, Comm on Psychological Aspects of Child & Family Health, Technical Report: Coparent or Second-Parent Adoption by Same-Sex Parents, 109 PEDIATRICS 341, 343 (2002) ("No data have pointed to any risk to children as a result of growing up in a family with 1 or more gay parents.").
459. California, Connecticut, the District of Columbia, Illinois, Indiana, Maine, Massachusetts, New Jersey, New York, Oregon, and Vermont permit a same-sex couple to jointly petition for an adoption.
460. See Human Rights Campaign, Parenting Laws: Joint Adoption and Second Parent Adoption (July 6, 2009), http://www.hrc.org/ documents/parenting-laws- maps.pdf. Additionally, Colorado and Pennsylvania permit a same-sex partner to petition to adopt the child of her partner. Id In numerous other states, some jurisdictions have held that joint or second-parent adoption is available to same-sex couples, and in many jurisdictions, the law is simply unclear. Id Only a handful of states explicitily prohibit same-sex couples from adopting.
461. Id.
462. See Widiss et al., supra note 159, at 489-92 ("The differences ascribed to the female and male role models reflect deep-seated stereotypes regarding male and female characteristics that are properly condemned as sex discrimination.").
463. See, e.g, Andersen v. King County, 138 P.3d 963, 982 (Wash. 2006) (supporting the responsible procreation argument by claiming that "as Skinner, Loving and Zablocki indicate, marriage is traditionally linked to procreation and survival of the human race");
464. see also Conaway v. Deane, 932 A.2d 571, 630 (Md. 2007) (supporting the responsible procreation argument by
465. citing Loving Skinner, and Maynard v. Hill, 125 U.S. 190 (1888)).
466. See supra subsection I.D.1.
467. See, e.g., Stanley v. Illinois, 405 U.S. 645 (1972) (requiring procedural safeguards before terminating a nonmarital biological father's relationship with his children);
468. Eisenstadt v. Baird, 405 U.S. 438 (1972) (ruling that unmarried persons have an equal right to use contraceptives);
469. Glona v. Am. Guarantee & Liab. Ins. Co., 391 U.S. 73 (1968) (striking down a law barring a mother from recovering in an action based on the wrongful
470. Levy v. Louisiana, 391 U.S. 68 (1968) (overturning a law barring an illegitimate child from recovering in an action based on the wrongful death of her mother).
471. See supra note 111 and accompanying text.
472. See, e.g, In re Marriage Cases, 183 P.3d 384, 430 (Cal. 2008) (noting that the argument from procreation was made in an amicus brief rather than in the state's brief);
473. Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 477-78 (Conn. 2008) (noting that the defendants disavowed any claim that the legislation establishing "a separate legal framework for committed same sex couples was motivated by the belief that the preservation of marriage as a heterosexual institution is in the best interests of children, or that prohibiting same-sex couples from marrying promotes responsible heterosexual procreation");
474. Lewis v. Harris, 908 A.2d 196, 205-06 (N.J. 2006) ("The State concedes that state law and policy do not support the argument that limiting marriage to heterosexual couples is necessary for either procreative purposes or providing the optimal environment for raising children.").
475. See, e.g., In re Marriage Cases, 183 P.3d at 446-52 (discussing the state's claims that statutes were justified by tradition, comity, separation-of-powers, and procreationbased arguments);
476. Varnum v. Brien, 763 N.W.2d 862, 873 (Iowa 2009) (observing that county-claimed statutes were justified by child-rearing concerns, conservation of state resources, and a state interest in promoting a traditional notion of marriage).
477. See, e.g., Brief Amicus Curiae of the American Center for Law and Justice in Support of Respondent Proposition 22 Legal Defense and Education Fund at 14-15,
478. In re Marriage Cases, 183 P.3d 384 (No. S147999) (arguing the "impossibility of distinguishing on principled grounds same-sex marriage and polygamy").
479. For example, a CBS News/N.Y. Times nationwide poll conducted in June 2009 asked, "Which comes closest to your view? Gay couples should be allowed to legally marry, OR, gay couples should be allowed to form civil unions but not legally marry, OR, there should be no legal recognition of a gay couple's relationship?" CBS News/N.Y. Times Poll, Supreme Court Nominee Sonia Sotomayor (June 12-16, 2009), available at http://www.cbsnews.com/htdocs/pdf/ poll-sotomayor-061709.pdf. The poll found that, of all respondents, 33% supported marriage, 30% supported civil unions but not marriage, and 32% supported no recognition.
480. Id.
481. A Fox News/Opinion Dynamics Poll conducted in May 2009 reported very similar results. See Fox News/Opinion Dynamics Poll (May 12-13, 2009), available at http:// www.foxnews.com/projects/pdf/051809-issues-web.pdf (finding that 33% supported legal marriage, 33% supported alternate legal partnership, and 29% supported no recognition). A Quinnipiac University poll conducted in April 2009 found that 38% would support and 55% would oppose a state law permitting same-sex couples to marry but also that 57% would support and 38% would oppose a law permitting civil unions.
482. Quinnipiac University Poll (Apr. 30, 2009), available at http://www.quinnipiac.edu/ x1295.xml?ReleaseID=1292.
483. See Strauss v. Horton, 207 P.3d 48, 75-76 (Cal. 2009) (reading the state constitution to require equal rights for same-sex couples, but not including equal access to the "designation of 'marriage'");
484. Lewis, 908 A.2d at 221 (holding that creation of civil unions would comport with equal protections granted by the state constitution);
485. Baker v. State, 744 A.2d 864, 887 (Vt 1999) (holding that the state constitution requires common benefits and protections but that diese need not come from a marriage license). As discussed above, in 2008, the California Supreme Court had overturned a state statute that prohibited same-sex marriage, and same-sex marriages were permitted in the state for a period of several months. The court subsequendy upheld a constitutional amendment overruling its prior decision. In reaching this determination, it appeared to rely heavily on the fact that the state had already created-and was maintaining-a separate domestic partnership status providing the legal benefits of marriage to samesex couples.
486. See Strauss, 207 P.3d at 61 ("[Proposition 8] carves out a narrow and limited exception to die[] state constitutional rights, reserving the official designation of the term 'marriage' for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws.") Also, although the Vermont Supreme Court had held that separate civil union status could be constitutionally permissible, the legislature subsequently chose to permit same-sex couples to marry.
487. See Vt. STAT. ANN. tit 15, §8 (2009) (defining marriage as "the legally recognized union of two people" and thereby including same-sex couples).
488. See, e.g., H.R. 436, 2010 Leg. (N.H. 2010) (enacted 2010).
489. See Kerrigan, v. Comm'r of Pub. Health, 957 A.2d 407, 480 (Conn. 2008) (holding that same-sex couples cannot be denied the right to marry despite the availability of civil unions);
490. Opinions of the Justices to the Senate, 802 N.E.2d 565, 571 (Mass. 2004) (holding that the creation of a separate status would be impermissible under the state constitution). In the Iowa litigation, the state had not created a separate status so the issue was not direcdy before the court, but the state supreme court still noted that "[a] new distinction based on sexual orientation would be equally suspect and difficult to square with the fundamental principles of equal protection embodied in [Iowa's] constitution."
491. Varnum, 763 N.W.2d at 906.
492. See, e.g, In re Marriage Cases, 183 P.3d at 452 (recognizing the social and historical importance of marriage);
493. Scott, supra note 126, at 562-66 (discussing symbolic and social meanings of marriage);
494. Sunstein, supra note 6, at 2098 ("[T] he underlying logic of the right to marry has everything to do with the fundamental importance of the expressive interests at stake.");
495. Id. at 2118 ("The most plausible account [of why the right to marry should qualify as a fundamental interest for equal protection purposes] points to the expressive benefits of marriage.").
496. Kerrigan, 957 A.2d at 477 n.80
497. (quoting 48 H.R. Proc., Pt. 7, 2005 Sess. (Conn. 2005) (remarks of Rep. Robert M. Ward)) (alterations in original) (internal quotation marks omitted).
498. In re Marriage Cases, 183 P.3d at 452.
499. See NJ. CIVIL UNION REVIEW COMM'N, THE LEGAL, MEDICAL, ECONOMIC & SOCIAL CONSEQUENCES OF NEW JERSEY'S CIVIL UNION LAW 1 (2008) [hereinafter NEW JERSEY REPORT], available at http://www.nj.gov/oag/dcr/downloads/CURC- FinalReport-.pdf (finding that civil unions "encouraged unequal treatment");
500. OFFICE OF LEGISLATIVE COUNSEL, REPORT OF THE VERMONT COMMISSION ON FAMILY RECOGNITION AND PROTECTION 26 (2008) [hereinafter VERMONT REPORT], available at http://www.leg.stete.vtus/WorkGroups/FamilyCommission/VCFRP-Report.pdf (finding that many members of civil unions "encountered ... instances where they find the promise of equality to be unfulfilled").
501. See NEW JERSEY REPORT, supra note 286, at 11-15;
502. VERMONT REPORT, supra note 286, at 10.
503. See NEW JERSEY REPORT, supra note 286, at 20-24. Notably, even marriages of same-sex couples within Massachusetts substantively differ from marriages of differentsex couples since the former are not recognized as marriages under federal law. See 1 U.S.C. §7 (2006 & Supp. I 2009) (defining marriage for federal purposes as "a legal union between one man and one woman"). The New Jersey report found that nonetheless, third parties were more likely to recognize the relationships as "marriages" and even to accord them benefits, such as health benefits, that the Employee Retirement Income Security Act (ERISA) arguably did not require because failure to do so would more obviously constitute discrimination.
504. See NEW JERSEY REPORT, supra note 286, at 21 ("It is not that ERISA-covered employers in Massachusetts don't understand that federal law allows them to refrain from providing benefits to same-sex married couples. It's that employers also understand that without the term 'civil union' or 'domestic partner' to hide behind ... [e]mployers would have to acknowledge that they are discriminating against their employees because they are lesbian or gay.").
505. See NEW JERSEY REPORT, supra note 286, at 15-20 (setting forth testimony regarding the negative psychological impact that the separate status represented by civil unions can have);
506. VERMONT REPORT, supra note 286, at 6, 9 (presenting testimony from members of civil unions and their families about the mentally deleterious effects that separate status has on them).
507. Eg, VERMONT REPORT, supra note 286, at 7. For example, a psychologist who worked with children of same-sex couples testified at a public hearing: In my experience with children, the fact that their parents cannot marry and have to have an alternative to marriage sends a very bad message. It is no different than water fountains for "negroes" and "whites" 45 years ago. The message is, "your family isn't good enough and therefore your parents are unable to marry.
508. Id. at 6-7.
509. See, e.g., NEW JERSEY REPORT, supra note 286, at 19 (noting testimony from a gay teenager regarding a feeling of inferiority compared to his straight siblings because unlike them, he could not envision his future with marriage in it);
510. VERMONT REPORT, supra note 286, at 9 (telling the story of a father who would not attend one son's civil union ceremony despite going to another son's same-sex marriage ceremony in Massachusetts).
511. See NEW JERSEY REPORT, supra note 286, at 17-19 (emphasizing the challenges faced by children of same-sex couples in a civil union, particularly those arising from peers questioning their fantilies' validity);
512. see also VERMONT REPORT, supra note 286, at 10-11 (concluding that children do well in gay- and lesbian-headed families but that recognizing their parents' relationship as marriage would provide additional benefits).
513. See NEW JERSEY REPORT, supra note 286, at 20-24 (evaluating the effects of allowing same-sex couples to marry in Massachusetts, and concluding that they are overwhelmingly positive and that simply changing the term from "civil union" to "marriage" can remedy the documented ills associated with civil unions).
514. See Vt. STAT. ANN. tit. 15, §8 (2009) (defining marriage to include same-sex couples).
515. In some instances, because of federal tax, benefits, or inheritance rules, a heterosexual couple might choose to register under one of these alternative statuses rather than marry since they would not be considered "married" for federal purposes. This could permit an individual to continue receiving, for example, social security survivor benefits that would otherwise be forfeited upon remarriage. See, e.g., NEW JERSEY REPORT, supra note 286, at 3, 42-44 (recommending that same-sex couples be permitted to marry but that the state continue to permit couples to register as domestic partners to reap some of these benefits).
516. See, e.g, Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 478 (Conn. 2008) ("[T] he justification of 'tradition' does not explain the classification; it merely repeats it").
517. Brown v. Bd. of Educ, 347 U.S. 483, 495 (1954).
518. Id. at 492;
519. see also id at 492 n.9 (specifying the findings of each lower court regarding the state of equalization between the schools in their respective states).
520. Id. at 494.
521. -339 U.S. 629, 634 (1950).
522. -518 U.S. 515 (1996).
523. See id. at 551-52 (cataloguing differences in faculty, adiletic facilities, and endowment);
524. Sweatt, 339 U.S. at 633-34 (cataloguing differences in, among other tilings, faculty, library volumes, class size).
525. Sweatt, 339 U.S. at 634 ("What is more important, the University of Texas Law School possesses to a far greater degree those qualities which are incapable of objective measurement but which make for greatness in a law school. Such qualities, to name but a few, include reputation of the faculty, experience of the administration, position and influence of the alumni, standing in the community, traditions and prestige.");
526. Virginia, 518 U.S. at 553 (asserting that Virginia had created "a 'pale shadow' of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence"). In the VMI case, the Court characterized the newly created military institute as "reminiscent of the remedy Texas proposed" in Sweatt, and quoted extensively from the earlier case with its emphasis on the intangible significance of tradition and prestige.
527. Id. at 553-54.