LOVING EQUALITY
75
in still other states, courts rejected the claims of same-sex couples, and
legislative attempts to reverse these rulings is either pending or has failed.
Prohibitions on Marriage as Equal Protection Violations
Challenges to state laws whose language or interpretation limits marriage
to individuals of different sexes have been brought under state constitutions
rather than the U.S. Constitution’s equal protection clause. Some courts,
applying their state constitution’s equivalent of the equal protection clause,
have ruled for plaintiffs, although a few of these victories were short-lived.
In
Goodridge v. Department of Public Health
, the Supreme Judicial Court
of Massachusetts held that denying same-sex individuals the right to marry
violated the state constitution’s equal protection clause; the ruling was
grounded in the rational basis test rather than the intermediate scrutiny
used for gender classifications, and the classification at issue was sexual
orientation, not sex.The court commented: “In this case, as in
Perez
and
Loving
, a statute deprives individuals of access to an institution of fun-
damental legal, personal, and social significance - the institution of mar-
riage - because of a single trait: skin color in
Perez
and
Loving
, sexual
orientation here.
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At the time of this writing, no law has been enacted
in Massachusetts regarding this issue; the court ruling is the basis for the
issuance of marriage licenses to same-sex couples.
Hawaii’s Supreme Court ruled in
Beahr v. Lewin
that denial of the right
of same-sex couples to marry was a sex-based classification, and thus re-
quired a hearing on whether the statute restricting marriage to opposite-sex
couples “furthers compelling state interests and is narrowly drawn to avoid
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