Washington Law Review


Anti-gay partnership laws prevent state and local governments from granting rights, benefits, and obligations associated with marriage to same-sex couples. Fifteen states have anti-gay partnership laws that prohibit the creation of civil unions, domestic partnerships, or specific partnership rights for gay couples. Although enacted under legitimate state authority, these laws come into conflict with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because they isolate gay citizens for special disadvantages and burdens within the traditional political processes. Under equal protection analysis, a law that neither burdens a fundamental fight nor targets a protected class will be presumed valid if it bears a rational relation to a legitimate governmental interest. However, the U.S. Supreme Court uses a more searching form of rational-basis review when examining laws that exhibit a desire to harm politically unpopular groups like gay citizens. In Romer v. Evans, the Court held that a constitutional amendment prohibiting special rights for gay citizens violated equal protection principles because its extensive breadth could not be rationally justified by legitimate state interests. This Comment argues that certain anti-gay partnership laws similarly violate equal protection principles because the sweeping harm they cause to gay citizens cannot be supported by legitimate state interests in marriage and the family. By contrast, other anti-gay partnership laws likely survive equal protection analysis because their more narrow prohibition of only comprehensive partnership rights corresponds more directly to the potentially legitimate state interests underlying the decision to bar same-sex couples from marrying. Ultimately, the Equal Protection Clause resists all laws that isolate gay citizens for special disadvantages, but requires only the invalidation of anti-gay partnership laws that cause broad and sweeping harm.

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