Four months after the Kortmann Committee issued its report, the Dutch Cabinet issued a statement that it would not pursue legislation to put into effect the majority=s recommendation to open civil marriage to same-gender couples. Instead, it recommended changes broadening registered partnership legislation, which had gone into effect two months earlier, in January of 1998. The House of Representatives of the Dutch Parliament expressed its disagreement with the Cabinet =s position by passing another resolution, demand ing the Dutch government to prepare legislation to open civil marriage to same-gender couples by January of 1999. No legislation was forthcoming, however, because the resolution was passed on the last day of the parliamentary year and general elections were going to be held three weeks= time. The elections resulted in a liberal/social democratic/labor coalition which was favorable to opening civil marriage to same-gender couples, and the coalition=s official program included a statement to that effect >ln the interest of strengthening the equal treatment of homosexual and lesbian couples, the Cabinet shall before 1 January 1999 introduce a bill to open civil marriage to persons of the same sex =54 Pursuant to its promise of legislation on allowing marriages for same-gender coup the Dutch Cabinet approved a bill in December of 1998, which was then forwarded to the Council of State(Raad van State) for advice. > >Finally, on July 8, 1999, the Dutch government formally introduced the bill in Parliament, thereby making its provisions public The bill amends article 30. Book l of the netherlands Civil Code to read as follo Article 30 1. A marriage can be contracted by two persons of different sex or of the same sex 2. The law only considers marriage in its civil relations Consequently, the bill does not create a parallel relationship with heterosexual marriage, but changes the definition of marriage to include same-gender couple The bill also provides for a re-evaluation of registered partnerships five years after enactment, to determine whether registered partnerships should be converted into marriages and whether registered partnership legislation should be repealed. In addition, the explanatory ofsame-gender couples that will differ from marriages of opposite-gender couples-the ocs orandum accompany ing the bill points out that there are two consequences of marriages presumption of the parentage of the children born during the marriage and problems with international recognition of marriages contracted by same-gender couples In explaining the difference concerning the presumption of the parentage of children born during the marriage, the memorandum states that Kees Waaldijk, Dutch Government Decides Against Same-Sex Marriage-but in Favourof adop by Same-Sex Couples, Feb 6, 1998, htt:.coc nindex htm file= 04 Leg Kees Waaldijk, Dutch Parliament Repeats Calls for Same-Sex Marriage and Adoption-but still no on,apri16,1998,http:/www.cocnvindex.htmi?file=mArriage03 54 Kees Waaldijk, New Dutch Government Committed to Opening up Marriage and Adoption to San SexCouplesAugust11,1998,http://www.coc.nvindex.htmifile=maRmiage02 Kees Waaldijk, Dutch Law Reform in Progress, January 1, 1999, translationbyKeesWaaldijk,http://ruliis.leidenunivnl/user/cwaaldi/wwwl(publicationsaboutLawandg Kamerstukken 1,1998/ 99, 26672. For an English translation of the text of the bill, Homosexuality, Unpublished papers and m inor publications)
Four months after the Kortmann Committee issued its report, the Dutch Cabinet issued a statement that it would not pursue legislation to put into effect the majority=s recommendation to open civil marriage to same-gender couples.52 Instead, it recommended changes broadening registered partnership legislation, which had gone into effect two months earlier, in January of 1998. The House of Representatives of the Dutch Parliament expressed its disagreement with the Cabinet=s position by passing another resolution, demanding the Dutch government to prepare legislation to open civil marriage to same-gender couples by January of 1999.53 No legislation was forthcoming, however, because the resolution was passed on the last day of the parliamentary year and general elections were going to be held in three weeks= time. The elections resulted in a liberal/social democratic/labor coalition, which was favorable to opening civil marriage to same-gender couples, and the coalition=s official program included a statement to that effect: >In the interest of strengthening the equal treatment of homosexual and lesbian couples, the Cabinet shall before 1 January 1999 introduce a bill to open civil marriage to persons of the same sex.= 54 Pursuant to its promise of legislation on allowing marriages for same-gender couples, the Dutch Cabinet approved a bill in December of 1998, which was then forwarded to the Council of State (Raad van State) for advice.55 Finally, on July 8, 1999, the Dutch government formally introduced the bill in Parliament, thereby making its provisions public. The bill amends Article 30, Book 1 of the Netherlands Civil Code to read as follows: Article 30 1. A marriage can be contracted by two persons of different sex or of the same sex. 2. The law only considers marriage in its civil relations.56 Consequently, the bill does not create a parallel relationship with heterosexual marriage, but changes the definition of marriage to include same-gender couples. The bill also provides for a re-evaluation of registered partnerships five years after enactment, to determine whether registered partnerships should be converted into marriages and whether registered partnership legislation should be repealed. In addition, the explanatory memorandum accompanying the bill points out that there are two consequences of marriages of same-gender couples that will differ from marriages of opposite-gender couples - the presumption of the parentage of the children born during the marriage and problems with international recognition of marriages contracted by same-gender couples. In explaining the difference concerning the presumption of the parentage of children born during the marriage, the memorandum states that: 52 Kees Waaldijk, Dutch Government Decides Against Same-Sex Marriage - but in Favour of Adoption by Same-Sex Couples, Feb. 6, 1998, http://www.coc.nl/index.html?file=marriage_04 53 Kees Waaldijk, Dutch Parliament Repeats Calls for Same-Sex Marriage and Adoption - but still no Legislation, April 16, 1998, http://www.coc.nl/index.html?file=marriage_03 54 Kees Waaldijk, New Dutch Government Committed to Opening up Marriage and Adoption to SameSex Couples, August 11, 1998, http://www.coc.nl/index.html?file=marriage_02 55 Kees Waaldijk, Dutch Law Reform in Progress, January 1, 1999, http://www.coc.nl/index.html?file=marriage_01 56 Kamerstukken II, 1998/99, 26 672. For an English translation of the text of the bill, see the summary translation by Kees Waaldijk, http://ruljis.leidenuniv.nl/user/cwaaldij/www/ (Publications about Law and Homosexuality, Unpublished papers and minor publications)
Ot would be pushing things too far to assume that a child bom in a marriage of two women would legally descend from both women. That would be stretching reality, The distance between reality and law would become too great. Therefore this bill does not adjust chapter l l of Book l of the Civil Code which bases the law of descent on a man-woman relationship. Nevertheless, the relationship of a child with the two women or the two men who are caring for it and who are bringing it up, deserves to be protected, also in law. This protection has partly been rea lised through the possibility of joint authority introduction of adoption by same-sex partners [ introduced 8 July 1999, Parliamentary Papers/ for a parent and his or her partner(articles 253t ff )and will be completed with a proposal for the 1998/1999, 266731, with a proposal for automatic joint authority over children born in a marriage or gistered partnership of two women [introduced 15 March 2000, Parliamentary Papers Il 1999/2000. 27047], and with a proposal to attach more consequences [such as inheritance] to joint authority [not yet introduced)57 Consequently, there will be no automatic parentage for children born to marriages of same ender couples As to the issue of the international aspects that may affect marriages of same-gender couples, the explanatory memorandum stated that [a] s the Kortmann-committee has stated(p. 18)the question relating to the completely new legal phenomenon of marriage between persons of the same sex concerns the interpretation of the notion of public order to be expected in other countries. Such interpreta tion relates to social opinion a bout homosexuality. The outcome of a survey by the said committee among mem ber-states of the Council of Europe was that recognition can only be expected in very few countries. This is not surprising. Apart from the recognition of marriage as such, it is relevant whether or not in other countries legal consequences will be attached to the marriage of persons of the same sex As a result of this spouses of the same sex may encounter various practicaland legal problems a broad. This is something the future spouses of the same sex will have to take into account .. However, this problem of>limping legal relations= also exists for registered partners, as well as for cohabiting same sex partners who have not contracted a registered partnership or marriage. 8 Wetsvoorstel openstelling huwelijk voor personen van hetzelfde geslacht(Wet openstelling huwelijk) Kamerstukken /1998/99, 26672, nr. 1-2(bracketed information provided by Kees Waaldijk in his English translationfoundathttp:/ruliisleidenunivnluser/cwaaldii/www(publicationsaboutLawandHomosexuality Unpublished papersand m inorpublications)
[i]t would be pushing things too far to assume that a child born in a marriage of two women would legally descend from both women. That would be stretching reality. The distance between reality and law would become too great. Therefore this bill does not adjust chapter 11 of Book 1 of the Civil Code, which bases the law of descent on a man-woman relationship. Nevertheless, the relationship of a child with the two women or the two men who are caring for it and who are bringing it up, deserves to be protected, also in law. This protection has partly been realised through the possibility of joint authority for a parent and his or her partner (articles 253t ff.) and will be completed with a proposal for the introduction of adoption by same-sex partners [introduced 8 July 1999, Parliamentary Papers II 1998/1999, 26 673], with a proposal for automatic joint authority over children born in a marriage or registered partnership of two women [introduced 15 March 2000, Parliamentary Papers II 1999/2000, 27 047], and with a proposal to attach more consequences [such as inheritance] to joint authority [not yet introduced].57 Consequently, there will be no automatic parentage for children born to marriages of samegender couples. As to the issue of the international aspects that may affect marriages of same-gender couples, the explanatory memorandum stated that: [a]s the Kortmann-committee has stated (p. 18) the question relating to the completely new legal phenomenon of marriage between persons of the same sex concerns the interpretation of the notion of public order to be expected in other countries. Such interpreta tion relates to social opinion about homosexuality. The outcome of a survey by the said committee among member-states of the Council of Europe was that recognition can only be expected in very few countries. This is not surprising. . . . Apart from the recognition of marriage as such, it is relevant whether or not in other countries legal consequences will be attached to the marriage of persons of the same sex. . . . As a result of this spouses of the same sex may encounter various practical and legal problems abroad. This is something the future spouses of the same sex will have to take into account. . . . However, this problem of >limping legal relations= also exists for registered partners, as well as for cohabiting samesex partners who have not contracted a registered partnership or marriage.58 57 Wetsvoorstel openstelling huwelijk voor personen van hetzelfde geslacht (Wet openstelling huwelijk), Kamerstukken II 1998/99, 26 672, nr. 1-2 (bracketed information provided by Kees Waaldijk in his English translation found at http://ruljis.leidenuniv.nl/user/cwaaldij/www/ (Publications about Law and Homosexuality, Unpublished papers and minor publications). 58 Id
The Council of State(Raad van State) presented a report on the billand the government responded to this report when it introduced the bill into Parliament. The var political parties issued comments on the bill, to which the government then responded. After three days of plenary debate on the bill in the House of Representatives, the House passed the bill on September 12, 2000, by a vote of 109 in favor and 33 opposed to opening civil marriage to same-gender couples. The bill is now before the Senate, where its members will discuss and vote on the bill. 60 If the Senate passes the bill, it will proceed to the Queen and the Minister of Justice for their signatures. According to the current time frame, the bill may become law as soon as January 1, 2001, although it is possible that it may take several months longer. Ifthe bill is enacted, the Netherlands will be the first country in the world to have opened civil marriage to same-gender couples 3. Legal developments in the United states 3.1 United States case law 3. 1. 1 Challenging prohibitions against marriages of same-gender couples: An overview of the constitutional analyses in the U.S.cases The court decisions in the United States cases are similar to the Dutch cases both of which begin with a statutory analysis of each jurisdiction=s marriage code. Many of the U. S decisions, however, also contain substantial constitutional analysis, based on the petitioners arguments that they have been denied individual rights or subjected to unequal treatment because they were refused marriage licenses. Consequently, the cases in the United States are important because they contain detailed analyses of claims of discrimination and individual ghts violations, arguments that are not found in the Dutch cases because the dutch courts deferred to the Parliament to solve the issue of whether to open marriage to same-gender couples. Thus the U.S. cases become an interesting study of the different ways the various individual rights issues are argued, and decided, by the courts In addition, the U. S. marriage cases are examples of the federalist system in operation All of the courts that denied the petitioners= constitutional claims did so based on an analysis of the federal constitution, in particular, the right to privacy, due process claims, and equal protection concepts that have been developed by the United States Supreme Court. In the other three cases that found in favor of the petitioners= claims of discrimination, however, the courts did so by relying on state constitutional provisions. Because these state constitutions also contain provisions granting rights of privacy, due process, and equal treatment Kamerstukken /1998/99, 26672, B. The original text of the proposed bill, to which the Raad van State was reporting on, can be found at Kamerstukken /1998/99, 26672, A. For the parliamentary history discussed hereafter, see the following documents response of the government: Kamerstukken /1998/99, 26 672, nr. 1-3; parties= comments: Kamerstukken 1/1998/99, 26672, nr 4; response of the government Kamerstukken /1998/99, 26672, nr 5(There also was a technical amendment introduced on the same day Kamerstukken /1998/99, 26672, nr. 6); plenary debate: Handelingen /1999/00, nr 97, p. 6292-6343 Handelingen 1/1999/00, nr 98, p. 6380-6404, and Handelingen 111999/00, nr 99, p. 6421-6447;vote Handelingen 1/1999/00, nr. 100, P. 6468: Senate: Kamerstukken /1999/00, 26672, nr. 348. For a more detailed discussion of the parliamentary reports, political party comments, and the parliamentary debates, see Caroline Forder, To Marry or Not to Marry: That ls the Question, forthcom ing in THE INTERNATIONAL SURVEY OF FAMILY LAW 2000 The dutch Senate does not have the authority to amend bills passed in the house of represent atives
The Council of State (Raad van State) presented a report on the bill59 and the government responded to this report when it introduced the bill into Parliament. The various political parties issued comments on the bill, to which the government then responded. After three days of plenary debate on the bill in the House of Representatives, the House passed the bill on September 12, 2000, by a vote of 109 in favor and 33 opposed to opening civil marriage to same-gender couples. The bill is now before the Senate, where its members will discuss and vote on the bill.60 If the Senate passes the bill, it will proceed to the Queen and the Minister of Justice for their signatures. According to the current time frame, the bill may become law as soon as January 1, 2001, although it is possible that it may take several months longer. If the bill is enacted, the Netherlands will be the first country in the world to have opened civil marriage to same-gender couples. 3. Legal developments in the United States 3.1 United States case law 3.1.1 Challenging prohibitions against marriages of same-gender couples: An overview of the constitutional analyses in the U.S. cases The court decisions in the United States cases are similar to the Dutch cases, both of which begin with a statutory analysis of each jurisdiction=s marriage code. Many of the U.S. decisions, however, also contain substantial constitutional analysis, based on the petitioners= arguments that they have been denied individual rights or subjected to unequal treatment because they were refused marriage licenses. Consequently, the cases in the United States are important because they contain detailed analyses of claims of discrimination and individual rights violations, arguments that are not found in the Dutch cases because the Dutch courts deferred to the Parliament to solve the issue of whether to open marriage to same-gender couples. Thus the U.S. cases become an interesting study of the different ways the various individual rights issues are argued, and decided, by the courts. In addition, the U.S. marriage cases are examples of the federalist system in operation. All of the courts that denied the petitioners= constitutional claims did so based on an analysis of the federal constitution, in particular, the right to privacy, due process claims, and equal protection concepts that have been developed by the United States Supreme Court. In the other three cases that found in favor of the petitioners= claims of discrimination, however, the courts did so by relying on state constitutional provisions. Because these state constitutions also contain provisions granting rights of privacy, due process, and equal treatment 59 Kamerstukken II 1998/99, 26 672, B. The original text of the proposed bill, to which the Raad van State was reporting on, can be found at Kamerstukken II 1998/99, 26 672, A. For the parliamentary history discussed hereafter, see the following documents: response of the government: Kamerstukken II 1998/99, 26 672, nr. 1-3; parties= comments: Kamerstukken II 1998/99, 26 672, nr. 4; response of the government: Kamerstukken II 1998/99, 26 672, nr. 5 (There also was a technical amendment introduced on the same day; Kamerstukken II 1998/99, 26 672, nr. 6); plenary debate: Handelingen II 1999/00, nr. 97, p. 6292-6343, Handelingen II 1999/00, nr. 98, p. 6380-6404, and Handelingen II 1999/00, nr. 99, p. 6421-6447; vote: Handelingen II 1999/00, nr. 100, p. 6468; Senate: Kamerstukken I 1999/00, 26 672, nr. 348. For a more detailed discussion of the parliamentary reports, political party comments, and the parliamentary debates, see Caroline Forder, To Marry or Not to Marry: That Is the Question, forthcoming in THE INTERNATIONAL SURVEY OF FAMILY LAW 2000. 60 The Dutch Senate does not have the authority to amend bills passed in the House of Represent atives
protections, one might expect that the analysis under a state constitutional provision would parallel the federal constitutional analysis. However, the federal constitution only establishes a minimum level of protection for United States citizens. a state=s judiciary has the authority to interpret its own constitution more broadly, thereby providing more protection to its citizens from individual rights violations. Also, because the highest appellate court in a state is the final authority on that state=s constitution, these decisions are not appealable to the more politically conservative United States Supreme Court. Finally, the Tenth Amendment to the United States Constitution reserves certain powers to the states; included in this reservation of power is the right to control family law legislation. Therefore, each state has the authority under this amendment to develop its own family law principles, more or less free from federal intervention. This is particularly true if the family law principles are based on interpretations of a state constitution, granting more protection to the petitioners than is found under the federal constitution In order to sort out this state/federal distinction, it is helpful to have an overview of the basic federal constitutional claims that appear in the U.S. case law. The first of these claims falls under a >fundamental right= analysis, based on the right to privacy or on a due process analysis. The second claim is based on an equal protection analysis are lesen. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, 'ed to the States respectively, or to the people. U.S. CoNST. amend. X
protections, one might expect that the analysis under a state constitutional provision would parallel the federal constitutional analysis. However, the federal constitution only establishes a minimum level of protection for United States citizens. A state=s judiciary has the authority to interpret its own constitution more broadly, thereby providing more protection to its citizens from individual rights violations. Also, because the highest appellate court in a state is the final authority on that state=s constitution, these decisions are not appealable to the more politically conservative United States Supreme Court. Finally, the Tenth Amendment 61 to the United States Constitution reserves certain powers to the states; included in this reservation of power is the right to control family law legislation. Therefore, each state has the authority under this amendment to develop its own family law principles, more or less free from federal intervention. This is particularly true if the family law principles are based on interpretations of a state constitution, granting more protection to the petitioners than is found under the federal constitution. 61 >The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.= U.S. CONST. amend. X. In order to sort out this state/federal distinction, it is helpful to have an overview of the basic federal constitutional claims that appear in the U.S. case law. The first of these claims falls under a >fundamental right= analysis, based on the right to privacy or on a due process analysis. The second claim is based on an equal protection analysis
When petitioners argue the first claim, that a statute interferes with their privacy interests or infringes on their due process rights, this claim is based on an assertion that the operation of the statute denies the petitioners a fundamental right. To make a determination of whether a fundamental right is involved, the court analyzes whether the right is >deeply rooted in this Nation=s history and trad ition, =62 whether it is >implicit in the concept of ordered liberty, =b and whether it has its >source in the belief that neither liberty nor justice would exist if [the right was] sacrificed. =64 In the U. S. marriage cases, the petitioners argue that marriage statutes prevent them from obtaining a marriage license, thereby denying them the right to marry, which is a fundamental right. Consequently, this denial of the fundamental right to marry infringes on the petitioners= right to privacy and their due process rights The claims under the equal protection analysis, however, are more complicated When a petitioner claims there has been a violation of equal protection rights, then there are d ifferent standards of review that the court must apply to decide the constitutionality of the statute. The first issue the court must determine is the basis for the d iscrimination claim. for example, if the unequal treatment is based on race, alienage, or national origin, the U.S Supreme Court has designated these classifications >suspect classes= requiring the court to apply >strict scrutiny= to the statute. The statute will be declared unconstitutional unless the state can provide a >compelling state interest= justifying the unequal treatment. The strict scrutiny standard of review is the highest standard established by the U.S. Supreme Court, and most statutes are struck down as unconstitutional under this analysis. On the other hand if no suspect classification is involved then the court applies the lowest standard of review, the >rational basis= test. Under this analysis, the petitioner has the burden of showing that the unequal treatment is not rationally related to a legitimate government interest. Generally statutes are upheld as constitutional under this standard of review because the court finds a rational basis for the difference in treatment by identifying a legit imate government interest There also is a >middle tier= or >intermediate= standard of review that appears in a numb marriage classifications are identified as >quasi-suspect= and given >heightened scrutiny, requiring the state to show that the legislative use of the classification >reflects a reasoned judgment consistent with the ideal of equal protection that furthers a substantial interest of the State =6s In earlier U.S. Supreme Court cases, classifications based on gender and illegitimacy fell within this middle-tier analysis, although more recent cases appear to be moving away from using an intermed iate stand ard of review Dean v. District of Columbia, 653 A2d 307, 331, (D.C. App. Ct. 1995), citing Moore v City of East Cleveland,43lUs.494,503,97S.Ct.1932,1938,52L.Ed.2d531(1977) ld, (citing Palko v Connecticut, 302 U.S. 319, 325, S Ct. 149, 152, 82L Ed 2d 288[ 1937) Id at 32658S. Ct. at 152 Dean 653 A2d at 339 It appears that cases involving claims of gender discrim ination are moving toward the highest level of review. In the recent case of United States v. Virginia, 518US 515, 116S. Ct. 2264, 135 L Ed 2d 735 (1996) the United States Supreme Court held that classifications based on gender will be allowed only when the state can show an >exceedingly persuasive justification= for the classification. See Note, The Demise of the Three Tier Review: Has the United States Supreme Court Adopted a >Sliding Scale= Approach Toward equal Protection Jurisprudence?, 23J CoNTEMP. L. 475(1997), Note and Comment, United States v. Virginia: Does Intermediate Scrutiny Still Exist?, 13 TOURO L REV. 229(1996)
When petitioners argue the first claim, that a statute interferes with their privacy interests or infringes on their due process rights, this claim is based on an assertion that the operation of the statute denies the petitioners a fundamental right. To make a determination of whether a fundamental right is involved, the court analyzes whether the right is >deeply rooted in this Nation=s history and tradition,= 62 whether it is >implicit in the concept of ordered liberty,= 63 and whether it has its >source in the belief that neither liberty nor justice would exist if [the right was] sacrificed.= 64 In the U.S. marriage cases, the petitioners argue that marriage statutes prevent them from obtaining a marriage license, thereby denying them the right to marry, which is a fundamental right. Consequently, this denial of the fundamental right to marry infringes on the petitioners= right to privacy and their due process rights. The claims under the equal protection analysis, however, are more complicated. When a petitioner claims there has been a violation of equal protection rights, then there are different standards of review that the court must apply to decide the constitutionality of the statute. The first issue the court must determine is the basis for the discrimination claim. For example, if the unequal treatment is based on race, alienage, or national origin, the U.S. Supreme Court has designated these classifications >suspect classes= requiring the court to apply >strict scrutiny= to the statute. The statute will be declared unconstitutional unless the state can provide a >compelling state interest= justifying the unequal treatment. The strict scrutiny standard of review is the highest standard established by the U.S. Supreme Court, and most statutes are struck down as unconstitutional under this analysis. On the other hand, if no suspect classification is involved, then the court applies the lowest standard of review, the >rational basis= test. Under this analysis, the petitioner has the burden of showing that the unequal treatment is not rationally related to a legitimate government interest. Generally statutes are upheld as constitutional under this standard of review because the court finds a rational basis for the difference in treatment by identifying a legitimate government interest. There also is a >middle tier= or >intermediate= standard of review that appears in a number of the marriage cases as well. According to this middle-level standard of review, certain classifications are identified as >quasi-suspect= and given >heightened scrutiny,= requiring the state to show that the legislative use of the classification >reflects a reasoned judgment consistent with the ideal of equal protection that furthers a substantial interest of the State.= 65 In earlier U.S. Supreme Court cases, classifications based on gender and illegitimacy fell within this middle-tier analysis, although more recent cases appear to be moving away from using an intermediate standard of review.66 62 Dean v. District of Columbia, 653 A.2d 307, 331, (D.C. App. Ct. 1995), citing Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S. Ct. 1932, 1938, 52 L. Ed. 2d 531 (1977). 63 Id., (citing Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 152, 82 L. Ed. 2d 288 [1937]). 64 Id. at 326, 58 S. Ct. at 152. 65 Dean, 653 A.2d at 339. 66 It appears that cases involving claims of gender discrimination are moving toward the highest level of review. In the recent case of United States v. Virginia, 518 U.S. 515, 116 S. Ct. 2264, 135 L. Ed.2d 735 (1996), the United States Supreme Court held that classifications based on gender will be allowed only when the state can show an >exceedingly persuasive justification= for the classification. See Note, The Demise of the ThreeTier Review: Has the United States Supreme Court Adopted a >Sliding Scale= Approach Toward Equal Protection Jurisprudence?, 23 J. CONTEMP. L. 475 (1997), Note and Comment, United States v. Virginia: Does Intermediate Scrutiny Still Exist?, 13 TOURO L. REV. 229 (1996)