Sunday, July 11, 2010

How I Learned to Stop Worrying and Embrace the Equal Protection Argument for Gay Marriage

by Jacob Sullum

July 9, 2010

Yesterday a federal judge in Massachusetts ruled in two related cases that the federal policy of denying marriage-related benefits to same-sex couples violates the 10th Amendment and the right to equal protection guaranteed by the Fifth Amendment's Due Process Clause. Although that first conclusion has drawn more attention, since it employs what is usually seen as a "conservative" principle for "progressive" ends, the equal protection argument (which is also the basis for the challenge to California's gay marriage ban) is the crux of both decisions.

In one case, "seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts," challenged the rules for federal employee health coverage, Social Security benefits, and joint filing of tax returns. The plaintiffs argued that in treating gay and heterosexual couples differently, as required by the Defense of Marriage Act, these rules violate the principle of equal protection, which requires (as the Supreme Court has put it) that "all persons similarly situated should be treated alike" by the government. U.S. District Judge Joseph Tauro agreed, finding that the policy of denying homosexual couples the benefits that heterosexual couples receive flunks even the highly deferential "rational basis" test. Since I've never found the arguments against recognizing gay marriage persuasive, I'm inclined to agree, although Tauro is breaking with precedent by defining rational as "rational."