Equal Protection at the Crossroads: On Baker, Common Benefits, and Facial Neutrality

Abstract

In Baker v. State, the Vermont Supreme Court held that the state's failure to accord same-sex couples the possibility of acquiring the benefits and protections afforded married couples violated the Common Benefits Clause of the Vermont Constitution. The Article suggests that the court misunderstood the conditions which trigger heightened scrutiny, since the court recognized that the marital statutes employ an express sex-based classification but nonetheless refused to apply the correct test. While employing heightened scrutiny would have yielded the same result - the court found a constitutional violation when applying a kind of rational basis with bite scrutiny - the court's misunderstanding is important to correct so that other courts will not be misled about what level of scrutiny to impose when deciding cases involving explicit classifications on the basis of sex or gender.

Note: This is a description of the paper and not the actual abstract.