Making It Up: Lessons for Equal Protection Doctrine from the Use and Abuse of Hypothesized Purposes in the Marriage Equality Litigation
Volume 68, Issue 3, 657-710
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 conjecturethat is, they may be hypothesizedin 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 for thinking critically about hypothesized purposes. It suggests several lessons about hypothesized purposes that should guide courts in the future. In particular, I discuss (1) the differences between hypothesized purposes, which are grounded in facts and concerns that were conceivably before a legislature, and post-hoc rationalizations, which I define as pretexts that have been manufactured to satisfy rational basis scrutiny but which could not plausibly have been a legislative purpose; (2) how courts should approach hypothesized purposes when there is evidence that a law was impelled by animus; and (3) why hypothesized purposes are inappropriate and should receive skeptical scrutiny when they are offered in support of measures enacted through direct democracy.