by Randall P. Ewing, Jr.
A number of state courts have recently considered, with varied results, whether equality guarantees contained in their respective state constitutions confer a constitutional right to same-sex marriage. While this issue has divided the public and spawned much discussion amongst scholars about whether a constitutional right to same-sex marriage exists, this Article goes beyond these familiar arguments to consider what the cases reveal about equal protection doctrine itself. Because some states utilize a unitary analytical framework for equal protection claims while others use the same three-tiered analysis federal courts employ, a comparative study of these cases reveals the adequacies and deficiencies of the different methodologies when applied to the issue of same-sex marriage.
The lessons provided by such comparisons, however, transcend the specific issue of same-sex marriage and offer broader insights into the merits of tiered versus unitary approaches to equal protection cases. This is because the failures of tiered analysis to produce results consistent with the normative goals of constitutional provisions of equality are the product of not just analytical errors, but systemic doctrinal flaws. This Article contends the traditional three-tiered equal protection methodology is fundamentally flawed in several aspects and only a unitary doctrine can accurately capture the relevant interests and goals of constitutional guarantees of equality. The Article then proposes a specific unitary analysis for all equal protection claims, which both addresses the flaws of tiered analysis and produces results more consistent with the principles of federal and state constitutional rights of equality.