scrutiny has returned to that of
Craig v. Boren
: that the sex-based classi-
fication serves important governmental objectives and the discriminatory
means employed are substantially related to achievement of those objec-
V. Marriage Equality Litigation
Litigation challenging state laws prohibiting same-sex marriages has had
mixed results, and courts have differed in their use of the
to support their rulings
The high courts of Massachusetts, Hawaii, Ver-
mont, and New Jersey ruled that denying individuals of the same sex the
right to marry (or the benefits of marriage) violated their state constitutions,
although the reasoning in these four cases differs, as well as the political
aftermath of the rulings. State supreme courts in New York and the District
of Columbia ruled against plaintiffs seeking the right to marry individuals of
the same sex, but laws were enacted that superseded these rulings. And
under the intermediate scrutiny test.) For a discussion of these and lower court post-
Virginia equal protection cases, see Heather L. Stobaugh,
The Aftermath of United
States v. Virginia: Why Five Justices are Pulling in the Reins on the
Persuasive Justification
and Kevin N. Rolando,
A Decade Later: United States v. Virginia and the Rise and Fall of “Skeptical Scrutiny
61 See, e.g., Josephine Ross,
Race, Gender, and Sexuality: ERiddle for our Times: The
Continued Refusal to Apply the Miscegenation Analogy to Same-Sex Marriage
Mark Strasser,
Loving in the New Millennium: On Equal
Protection and the Right to Marry
Loving, Baehr, and the Right to Marry: On Legal Argumentation and So-
phistical Rhetoric
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