Hastings Law Journal


Kevin H. Lewis


Recent national events have forced the American public to discuss a subject once considered unthinkable-same-sex marriage. In 1996, the Hawaii Supreme Court decided Baehr v. Lewin, potentially paving the way to allow same-sex couples the right to legally marry in the state of Hawaii. In response to this possibility, Congress passed and the President signed the Defense of Marriage Act, which defines marriage in the U.S. Code in such a way as to deny federal recognition to these couples, and also grants the states the right to refuse to recognize same-sex marriages performed in Hawaii. Addressing a totally different issue, the U.S. Supreme Court in Romer v. Evans decided that it violates the Fourteenth Amendment's Equal Protection Clause when the government enacts a law, based on "animus" or prejudice, which disadvantages gays and lesbians.

This Note addresses the convergence of these events and makes some predictions about the future. After a brief overview of equal protection doctrine and cases addressing same-sex marriage, the author addresses the impact of Romer v. Evans on equal protection in general. Next, the author examines the part of the Defense of Marriage Act which bars same-sex couples from receiving federal rights and benefits, and argues that because this provision was based on irrational prejudice, it is an example of a law that is unconstitutional under the principles of Romer v. Evans. Finally, the author creates a framework that courts could use to examine laws that discriminate against gays and lesbians, and discusses Romer's implications for these laws.

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