In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3216

Milagros Irizarry, individually and on

behalf of all similarly situated employees

of the Chicago Board of Education,

Plaintiff-Appellant,

v.

Board of Education of the

City of Chicago,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 6991--Joan B. Gottschall, Judge.

ARGUED JANUARY 8, 2001--Decided May 15, 2001

 Before Posner, Manion, and Kanne, Circuit

Judges.

 Posner, Circuit Judge. Although Milagros

Irizarry has lived with the same man for

more than two decades and they have two

(now adult) children, they have

nevermarried. As an employee of the

Chicago public school system, she

receives health benefits but he does not,

even though he is her "domestic partner"

(the term for persons who are cohabiting

with each other in a relationship similar

to marriage), though he would if he were

her husband. In July 1999, the Chicago

Board of Education extended spousal

health benefits to domestic partners--but

only if the domestic partner was of the

same sex as the employee, which excluded

Irizarry’s domestic partner, an exclusion

that she contends is unconstitutional.

 Besides being of the same sex,

applicants for domestic-partner status

must be unmarried, unrelated, at least 18

years old, and "each other’s sole

domestic partner, responsible for each

other’s common welfare." They must

satisfy two of the following four

additional conditions as well: that they

have been living together for a year;

that they jointly own their home; that

they jointly own other property of
specified kinds; that the domestic

partner is the primary beneficiary named

in the employee’s will. Although the

board’s purpose in entitling domestic

partners so defined to spousal benefits

was to extend such benefits to homosexual

employees, homosexual marriage not being

recognized by Illinois, 750 ILCS 5/212,

5/213.1, entitlement to the benefits does

not require proof of sexual orientation.

 Irizarry’s domestic partner satisfies

all the conditions for domestic-partner

benefits except being of the same sex.

She argues that the board’s policy denies

equal protection and, secondarily, due

process. The district court dismissed her

suit for failure to state a claim.

 The board of education makes two

arguments for treating homosexual couples

differently from unmarried heterosexual

couples. First, since homosexual marriage

is not possible in Illinois (or anywhere

else in the United States, though it is

now possible in the Netherlands), and

heterosexual marriage of course is, the

recognition of a domestic-partnership

surrogate is more important for

homosexual than for heterosexual couples,

who can obtain the benefits simply by

marrying. Second, the board wants to

attract homosexual teachers in order to

provide support for homosexual students.

Cf. Crawford v. City of Chicago, 710

N.E.2d 91, 98-99 (Ill. App. 1999).

According to its brief, the board

"believes that lesbian and gay male

school personnel who have a healthy

acceptance of their own sexuality can act

as role models and provide emotional

support for lesbian and gay students. . .

. They can support students who are

questioning their sexual identities or

who are feeling alienated due to their

minority sexual orientation. They can

also encourage all students to be

tolerant and accepting of lesbians and

gay males, and discourage violence

directed at these groups."

 This line of argument will shock many

people even today; it was not that long

ago when homosexual teachers were almost

universally considered a public menace

likely to seduce or recruit their

students into homosexuality, then

regarded with unmitigated horror. The

plaintiff does not argue, however, that

the Chicago Board of Education is
irrational in having turned the

traditional attitude toward homosexual

teachers upside down. It is not for a

federal court to decide whether a local

government agency’s policy of tolerating

or even endorsing homosexuality is sound.

Even if the judges consider such a policy

morally repugnant--even dangerous--they

may not interfere with it unless

convinced that it lacks even minimum

rationality, which is a permissive

standard. It is a fact that some

schoolchildren are homosexual, and the

responsibility for dealing with that fact

is lodged in the school authorities, and

(if they are public schools) ultimately

in the taxpaying public, rather than in

the federal courts.

 The efficacy of the policy may be

doubted. Although it had been in effect

for a year and a half when the appeal was

argued, only nine employees out of some

45,000 had signed up for domestic-partner

benefits and none of the nine indicated

whether he or she was homosexual; they

may not all have been, as we shall see--

perhaps none were. Nor is there any

indication that any of the nine are new

employees attracted to teach in the

Chicago public schools by the

availability of health benefits for samesex domestic partners. Maybe it’s too

early, though, to assess the efficacy of

the policy. No matter; limited efficacy

does not make the policy irrational--not

even if we think limited efficacy

evidence that the policy is more in the

nature of a political gesture than a

serious effort to improve the lot of

homosexual students--if only because with

limited efficacy comes limited cost.

Because homosexuals are a small fraction

of the population, because the continuing

stigma of homosexuality discourages many

of them from revealing their sexual

orientation, and because nowadays a

significant number of heterosexuals

substitute cohabitation for marriage in

response to the diminishing stigma of

cohabitation, extending domestic-partner

benefits to mixed-sex couples would

greatly increase the expense of the

program.

 Irizarry argues that the child of an

unmarried couple ought equally to be

entitled to the mentoring and role-model

benefits of having teachers who live in

the same way as the student’s parents do.
Cost considerations to one side, the

argument collides with a nationwide

policy in favor of marriage. True, it is

no longer widely popular to try to

pressure homosexuals to marry persons of

the opposite sex. But so far as

heterosexuals are concerned, the evidence

that on average married couples live

longer, are healthier, earn more, have

lower rates of substance abuse and mental

illness, are less likely to commit

suicide, and report higher levels of

happiness--that marriage civilizes young

males, confers economies of scale and of

joint consumption, minimizes sexually

transmitted disease, and provides a

stable and nourishing framework for child

rearing--see, e.g., Linda J. Waite &

Maggie Gallagher, The Case for Marriage:

Why Married People Are Happier,

Healthier, and Better Off Financially

(2000); David Popenoe, Life without

Father: Compelling New Evidence That

Fatherhood and Marriage Are Indispensable

for the Good of Children and Society

(1996); George W. Dent, Jr., "The Defense

of Traditional Marriage," 15 J.L. & Pol.

581 (1999), refutes any claim that

policies designed to promote marriage are

irrational. The Chicago Board of

Education cannot be faulted, therefore,

for not wishing to encourage heterosexual

cohabitation; and, though we need not

decide the point, the refusal to extend

domestic-partner benefits to heterosexual

cohabitators could be justified on the

basis of the policy favoring marriage for

heterosexuals quite apart from the

reasons for wanting to extend the spousal

fringe benefits to homosexual couples.

 Of course, self-selection is important;

people are more likely to marry who

believe they have characteristics

favorable to a long-term relationship.

Lee A. Lillard & Constantijn W.A. Panis,

"Marital Status and Mortality: The Role

of Health," 33 Demography 313 (1996); Lee

A. Lillard, Michael J. Brien & Linda J.

Waite, "Premarital Cohabitation and

Subsequent Dissolution: A Matter of SelfSelection?" 32 Demography 437 (1995). But

the Chicago Board of Education would not

be irrational (though it might be

incorrect) in assigning some causal role

to the relationship itself. Linda J.

Waite, "Does Marriage Matter?" 32

Demography 483, 498-99 (1995), finds that

cohabitants are much less likely than
married couples to pool financial

resources, more likely to assume that

each partner is responsible for

supporting himself or herself

financially, more likely to spend free

time separately, and less likely to agree

on the future of the relationship. This

makes both investment in the relationship

and specialization with this partner much

riskier than in marriage, and so reduces

them. Whereas marriage connects

individuals to other important social

institutions, such as organized religion,

cohabitation seems to distance them from

these institutions.

 Irizarry and her domestic partner may,

given the unusual duration of their

relationship, be an exception to general

izations about the benefits of marriage.

We are not aware of an extensive

scholarly literature comparing marriage

to long-term cohabitation. This may be

due to the fact that long-term

cohabitation is rare--only ten percent of

such relationships last for five years or

more, Pamela J. Smock, "Cohabitation in

the United States: An Appraisal of

Research Themes, Findings, and

Implications," 26 Ann. Rev. Sociology 1

(2000). But there is evidence that the

widespread substitution of cohabitation

for marriage in Sweden has given that

country the highest rate of family

dissolution and single parenting in the

developed world. David Popenoe,

Disturbing the Nest: Family Change and

Decline in Modern Societies 173-74

(1988). It is well known that divorce is

harmful to children (see Jonathan Gruber,

"Is Making Divorce Easier Bad for

Children? The Long Run Implications of

Unilateral Divorce," NBER Working Paper

No. 7968 (Oct. 2000), for a survey of the

evidence), and presumably the same is

true for the dissolution of a

cohabitation--and a cohabitation is more

likely to dissolve than a marriage. True,

Irizarry’s cohabitation has not

dissolved; but law and policy are based

on the general rather than the

idiosyncratic, as the Supreme Court noted

with reference to other benefits tied to

marital status in Califano v. Jobst, 434

U.S. 47, 53-54 (1977). Nor is it entirely

clear that this couple ought to be

considered an exception to the general

concern with heterosexuals who choose to

have a family outside of marriage. For

when asked at argument why the couple had
never married, Irizarry’s counsel replied

that he had asked his client that

question and she had told him that "it

just never came up." There may be good

reasons why a particular couple would not

marry even after producing children, but

that the thought of marriage would not

even occur to them is disquieting.

 The Lambda Legal Defense and Education

Fund has filed an amicus curiae brief

surprisingly urging reversal--

surprisingly because Lambda is an

organization for the promotion of

homosexual rights, and if it is the law

that domestic-partnership benefits must

be extended to heterosexual couples, the

benefits are quite likely to be

terminated for everyone lest the

extension to heterosexual cohabitors 

impose excessive costs and invite

criticism as encouraging heterosexual

cohabitation and illegitimate births and

discouraging marriage and legitimacy. But

Lambda is concerned with the fact that

state and national policy encourages

(heterosexual) marriage in all sorts of

ways that domestic-partner health

benefits cannot begin to equalize. Lambda

wants to knock marriage off its perch by

requiring the board of education to treat

unmarried heterosexual couples as well as

it treats married ones, so that marriage

will lose some of its luster.

 This is further evidence of the

essentially symbolic or political rather

than practical significance of the

board’s policy. Lambda is not

jeopardizing a substantial benefit for

homosexuals because very few of them want

or will seek the benefit. In any event,

it would not be proper for judges to use

the vague concept of "equal protection"

to undermine marriage just because it is

a heterosexual institution. The desire of

the board of education to increase the

employment of homosexual teachers is

admittedly a striking manifestation of

the sexual revolution that has character

ized, some would say convulsed, the

United States in the last forty years.

The courts did not try to stop the

revolution. On the contrary, they spurred

it on, most pertinently to this case by

their decisions removing legal

disabilities of birth out of wedlock,

e.g., Jimenez v. Weinberger, 417 U.S. 628

(1974); Gomez v. Perez, 409 U.S. 535

(1973) (per curiam); Weber v. Aetna
Casualty & Surety Co., 406 U.S. 164

(1972); Glona v. American Guarantee &

Liability Insurance Co., 391 U.S. 73

(1968); Levy v. Louisiana, 391 U.S. 68

(1968), disabilities that if they still

existed might have induced Ms. Irizarry

and the father of her children to marry

in order to remove those disabilities

from their children. Likewise relevant

are cases such as Stanley v. Illinois,

405 U.S. 645 (1972), that confer

constitutional rights on unwed fathers.

But no court has gone so far as to deem

marriage a suspect classification because

government provides benefits to married

persons that it withholds from cohabiting

couples. That would be a bizarre

extension of case law already criticized

as having carried the courts well beyond

the point at which the Constitution might

be thought to provide guidance to social

policy.

 To the board’s argument that it has

extended spousal benefits to the domestic

partners of homosexual employees because

homosexual marriage is not a status

available to its employees, Irizarry

replies that the argument depends on the

board’s groundless decision to provide

benefits to spouses, rather than domestic

partners, of its employees. She says that

all the board has to do to purge the

constitutional violation is to condition

all nonemployee fringe benefits on

satisfaction of its domestic-partnership

conditions other than that the domestic

partner be of the same sex as the

employee; and then the "discrimination"

in favor of heterosexuals that the

extension of spousal benefits to

homosexual domestic partners was intended

to erase will be eliminated without

discrimination against heterosexual

domestic partners. She points to

Chicago’s Human Rights Ordinance, which

forbids discrimination on the basis of

marital status. But the purpose, at least

the primary purpose, of such a

prohibition is surely not to

dethronemarriage; it is to prevent

discrimination against married women, who

employers might think have divided

loyalties. Such laws are pro-marriage,

not anti- as the plaintiff suggests.

 All other considerations to one side,

the board reaps cost savings by basing

dependent benefits on marital status--

savings distinct from those discussed
earlier that depend simply on the much

smaller number of homosexuals than

heterosexuals likely to seek or qualify

for domestic-partner benefits. It is

easier to determine whether the claimant

is married to an employee than to

determine whether the claimant satisfies

the multiple criteria for domestic

partnership. Earlier we took for granted

that cost is an admissible consideration

in evaluating the rationality of a

classification; here we add that the

cases so hold. Bankers Life & Casualty

Co. v. Crenshaw, 486 U.S. 71, 83-84

(1988); LaGuerre v. Reno, 164 F.3d 1035,

1041 (7th Cir. 1998); DeSousa v. Reno,

190 F.3d 175, 185 (3d Cir. 1999); Silver

v. Baggiano, 804 F.2d 1211, 1218-19 (11th

Cir. 1986). And we do not understand the

plaintiff to be arguing that the board of

education must have anything more than a

rational basis for its action in order to

defeat the plaintiff’s equal protection

claim. Only when the plaintiff in an

equal protection case is complaining of a

form of discrimination that is suspect

because historically it was irrational or

invidious is there a heavier burden of

justifying a difference in treatment than

merely showing that it is rational. E.g.,

Kimel v. Florida Bd. of Regents, 528 U.S.

62, 83-84 (2000); Milner v. Apfel, 148

F.3d 812, 815-16 (7th Cir. 1998); Miller

v. United States, 73 F.3d 878, 881-82

(9th Cir. 1995); Disabled American

Veterans v. Dept. of Veterans Affairs,

962 F.2d 136, 141-42 (2d Cir. 1992).

Heterosexuals cohabiting outside of

marriage are not such a class. There is a

history of disapproval of (nonmarital)

cohabitation, and some states still

criminalize it. See, e.g., Ariz. Rev.

Stat. Ann. sec. 13-1409; Mich. Comp. Laws

Ann. sec. 750.355; N.D. Cent. Code sec.

12.1-20-10--as indeed Illinois did until

1990. United States v. Nichols, 937 F.2d

1257, 1263 (7th Cir. 1991). But the

disapproval is not necessarily irrational

or invidious, Doe v. Duling, 782 F.2d

1202, 1207 (4th Cir. 1986), given the

benefits of marriage discussed earlier.

It was rational for the board to refuse

to extend domestic-partnership benefits

to persons who can if they wish marry and

by doing so spare the board from having

to make a factual inquiry into the nature

of their relationship.

 The least rational feature of the

board’s policy, though not emphasized by
the plaintiff, is that although-domesticpartner benefits are confined to persons

of the same sex, the partners need not be

homosexual. They could be roommates who

have lived together for a year and own

some property jointly and for want of

relatives are each other’s "sole domestic

partner," and if so they would be

entitled to domestic-partner benefits

under the board of education’s policy. To

distinguish between roommates of the same

and of different sexes, as the policy

implicitly does, cannot be justified on

the ground that the latter but not the

former could marry each other!

 So the policy does not make a very close

fit between end and means. But it doesn’t

have to, provided there is a rational

basis for the loose fit. See, e.g., Kimel

v. Florida Bd. of Regents, supra, 528

U.S. 62 at 83-84; Vance v. Bradley, 440

U.S. 93, 108-109 (1979); Zehner v. Trigg,

133 F.3d 459, 463 (7th Cir. 1997);

Wedderburn v. INS, 215 F.3d 795, 800 (7th

Cir. 2000). This follows from our earlier

point that cost is a rational basis for

treating people differently. Economy is

one of the principal reasons for using

rules rather than standards to govern

conduct. Rules single out one or a few

facts from the welter of possibly

relevant considerations and make that one

or those few facts legally determinative,

thus dispensing with inquiry into the

other considerations. A standard that

takes account of all relevant

considerations will produce fewer

arbitrary differences in outcome, but at

a cost in uncertainty, administrative

burden, and sometimes even--as here--in

invading people’s privacy. It is easy to

see why the board of education does not

want to put applicants to the proof of

their sexual preference. That would be

resented. The price of avoiding an

inquiry that would be costly because it

would be obnoxious is that a few

roommates may end up with windfall

benefits. We cannot say that the board is

being irrational in deciding to pay that

price rather than snoop into people’s sex

lives. Cf. Califano v. Jobst, supra, 434

U.S. at 53-54.

 If the result is, as it may be, that

none of the nine employees who have opted

for domestic-partner benefits is

homosexual (or at least that none is

willing to acknowledge his homosexuality
publicly, for that is not required by the

board’s policy though it would seem

implicit in the board’s desire to attract

homosexuals who have "a healthy

acceptance of their own sexuality"), this

would lend a note of irony to the board’s

policy and would reinforce our earlier

conjecture that the purpose is to make a

statement rather than to confer actual

monetary benefits. But "making a

statement" is a common purpose of

legislation and does not condemn it as

irrational.

 The plaintiff has a second ground of

appeal. Interpreting the city ordinance

to which we referred earlier as

forbidding discrimination on the basis of

marital status, she argues that by

depriving her of the right created by

those laws the board has deprived her of

"property" without due process of law. It

is true that a legal claim can be

"property" within the meaning of the due

process clause Logan v. Zimmerman Brush

Co., 455 U.S. 422, 428-31 (1982); Mullane

v. Central Hanover Bank & Trust Co., 339

U.S. 306, 311, 13 (1950); Shvartsman v.

Apfel, 138 F.3d 1196, 1199 (7th Cir.

1998), but it is not true that a

violation of state or local law (or for

that matter of federal law) as such is a

deprivation of property. Daniels v.

Williams, 474 U.S. 327, 331 (1986); Paul

v. Davis, 424 U.S. 693, 700-01 (1976).

How could it be? It is the violation that

gives rise to the legal claim! Had the

board not discriminated against the

plaintiff on the basis of her

(non)marital status, she would not have a

claim that she could press (that she is

pressing) before the Chicago Commission

on Human Relations. We suspect that she

has misinterpreted the ordinance as

forbidding any preference for marital

status. But that is an issue for the

Commission to resolve in the first

instance, and it is irrelevant to whether

she has alleged a deprivation of

constitutional property.

Affirmed.