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George Mason Law Review

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Commentators and lower courts will speculate for some time on the actual holding and potential sweep of the Supreme Court's decision in Windsor v. United States [699 F.3d 169, 175 (2d Cir. 2012), aff'd, 133 S. Ct. 2675 (2013)], as well as how the Court might have resolved Perry v. Brown [671 F.3d 1052, 1063 (9th Cir. 2012), vacated and remanded sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)] on the merits.

Of at least equal and perhaps greater importance, however, is a subtle yet critical unresolved threshold question lurking in the background of these two decisions, as well as in numerous other cases percolating in the lower courts regarding claims by gay and lesbian plaintiffs. This unresolved question is vital to mounting a successful equal protection challenge: is there any "discrimination" as equal protection precedents define that concept, and if so, what is the nature of the classification?

In this Article, I attempt to resolve the classification-framing quandary created by equal protection claims brought by gays and lesbians against laws falling into these latter two categories. The quandary is the result of two separate lines of equal protection precedents invoked in tandem in the same-sex marriage, benefit, and conduct cases. The first of these is a line of cases requiring that, in the absence of facial discrimination, plaintiffs successfully identify a law's discriminatory purpose, or show that the law is being applied in an inequitable manner. The second line of cases holds that even when a law references sex on its face, the law is nonetheless considered facially neutral so long as its restrictions apply equally to members of both sexes.

In response to the resulting classification-framing quandary, this Article will consider whether it is possible for gay and lesbian plaintiffs to navigate between the Scylla of the discriminatory purpose requirement and the Charybdis of the equal application theory so as to satisfy the threshold requirement for bringing equal protection challenges against such laws. This Article demonstrates that although these laws raise complex framing issues, they should be characterized as purposefully discriminating on the bases of sexual orientation and sex, as well as against same-sex couples, and that any of three characterizations should suffice to get same-sex conduct equal protection claims past the threshold discrimination inquiry.

Part I of this Article examines the application of the discriminatory purpose requirement to claims that same-sex conduct laws discriminate on the basis of sexual orientation. Part II examines the application of the equal application theory to claims that same-sex conduct laws discriminate on the basis of sex.

Part III considers an alternative method of framing such claims-as discrimination against same-sex couples-to navigate between the discriminatory purpose requirement and the equal application theory. Part IV considers cross-referenced same-sex conduct laws and whether they are distinguishable from laws that directly reference same-sex conduct. Part V surveys the Supreme Court's existing gay rights precedents to determine the extent to which the Court has provided guidance on how to resolve the classification-framing quandary presented by laws regulating same-sex conduct.



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