June 5, 2009
Equal Protection Issue in NH Same-Sex Marriage Bill
Professor Tony Infanti over at Feminist Law Professors blog has noted that the new New Hampshire same-sex marriage bill signed into law this week does have a constitutional issue other than DOMA-type problems, which we discussed here.
The new law provides:
By providing different "age of consent" laws for entering into marriage with a person of one's same sex than with a person of the "opposite" sex, the state of New Hampshire is obviously making a classification subject to equal protection analysis.
Such differential age requirements are not unknown in non-marriage contexts. In the United States, some states have so-called "Romeo and Juliet" statutes which exempt from criminalization "statutory rape" cases in which the parties are close in age, but do not similarly exempt the parties if they are of the same-sex. For an excellent recent article, see Michael Higdon, Queer Teens And Legislative Bullies: The Cruel And Invidious Discrimination Behind Heterosexist Statutory Rape Laws, 42 UC Davis L. Rev. 195 (2008), who discusses the most well known case, State v. Limon, 122 P.3d 22, 24 (Kan. 2005), as well as other cases and statutes. And in other nations, the decriminalization of homosexual sodomy often left intact differential age of consent statutes - the higher age required for same-sex activity.
It will be interesting to see if the NH age differential will be challenged.
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