Law Commons^™

Making It Up: Lessons For Equal Protection Doctrine From The Use And Abuse Of Hypothesized Purposes In The Marriage Equality Litigation, Steve Sanders

Articles by Maurer Faculty

To survive rational basis scrutiny under the Equal Protection Clause, a law must serve a governmental purpose which is at least legitimate. It is well established that legitimate purposes can sometimes be found through speculation and conjecture-that is, they may be hypothesized-in order to avoid the difficulties of identifying actual purpose or the specter of courts second-guessing legislative judgments. But hypothesized purposes can be abused, and such abuse was rampant in the states' defenses of their bans on same-sex marriage, bans which were ultimately invalidated in Obergefell v. Hodges.

This Article draws on the federal marriage litigation as a lens …