In recent marriage equality litigation, opponents of same-sex marriage have argued that gay and straight couples are not “similarly situated” with respect to the purposes of the marriage statutes. Courts in Iowa,Connecticut, and California have rejected these arguments (although the California result was overturned by Proposition 8, which itself was invalidated by a district court as this Article was being written). The Iowa and California courts also questioned the structure of the “similarly situated” analysis asserted by the opponents. Marriage equality opponents in those states pressed a “threshold”-type similarly situated analysis.Under this scheme, if the two groups are not similarly situated, there is no need to proceed to the merits of equal protection review. Judges in Iowa and California noted that this asserted formulation permits an end-run around full equal protection analysis,which properly focuses on the “fit” between the legislative classification and the purpose of the statute.
This Article asks, “what is the meaning of the phrase ‘similarly situated’?” At first blush, the question appears simple, but it has far-reaching implications. Although the phrase “similarly situated” is a familiar component of equal protection case law, it has not received much scholarly attention. Constitutional law scholars have focused more on other aspects of the doctrine. To the Author’s knowledge, this Article is the first to examine the phrase “similarly situated."
18 Geo. Mason L. Rev. 581 (2011)