But, in addition to the moral/political aspect of it, what bothers me is that there is no constitutional justification for denying to same-sex couples the right to marry. I mean, absolutely none. Any reasonable reading of the Equal Protection jurisprudence in this country makes it clear that a ban on same-sex marriage is blatantly unconstitutional. (Note: If you think this just means that I haven't heard a good argument yet, please comment and let know).
For people who are interested, here is a primer on equal protection law, along with arguments for why same-sex marriage is constitutionally required.
The Equal Protection Clause: The 14th Amendment guarantees that no state shall "deny to any person...the equal protection of the laws." This clause has been a source of controversy since the moment it was added to the Constitution. The problem is that every law favors some people over others. That's what laws do. What does it mean for a state to deny equal protection?
Levels of Scrutiny: The way that the doctrine has evolved over the last 140 years, courts will apply different levels of "scrutiny" to different laws. Most laws will be upheld if there is a "rational basis" for the discrimination in the law. Tax laws make SUV owners may more taxes than hybrid owners, but this is not unconstitutional. At the other end of the spectrum is "strict scrutiny." For laws that discriminate based on certain suspect classes—race, religion, national origin—the Court will require that the state justify the law by showing that it is "narrowly tailored" to further a "compelling government interest." Some classifications—such as gender—get "intermediate scrutiny."
Rational Basis: First, consider whether bans on same-sex marriage are even rational. The Supreme Court has, on several occasions, has struck down laws as being completely irrational because they were based on irrational prejudice. Indeed, the Supreme Court has even struck down a law that discriminated against homosexuals as "inexplicable by anything but animus." Consider whether there are any rational arguments for banning same-sex marriage that are not based on hatred, prejudice, religious dogma, or vague terms such as the "sanctity of marriage." Marriage, legally, is simply a set of laws that lets people take advantage of certain financial and legal benefits reserved for couples. To deny this based on the gender of the participants in the union is indeed inexplicable by anything but animus.
Even if bans on same-sex marriage are somehow rational, however, there is still the question of whether they should get higher scrutiny.
Suspect Class Analysis: The major determinant of the level of scrutiny is whether the discrimination is based on a suspect classification. The Court has never said that sexuality is a suspect classification, but, then again, it has never really had the opportunity to do so. There are many theoretical approaches that courts use to determine which groups are suspect classes. These include historical discrimination against the group, the immutability of the characteristic, whether there is any moral relevance to the characteristic, and whether the class at issue is a "discrete and insular minority"—i.e., how easy it is to legislatively pick on the group. Although I will not go into depth here, it is pretty clear that sexuality should be considered a suspect class under existing precedent.
14th Amendment Theory: There is an additional wrinkle to the suspect class analysis, and that is whether we care about a suspect classification of sexuality, or the suspect class of gay people.
There are generally two camps of 14th Amendment Theory: classification theory and subordination theory. Classification theorists put a lot of emphasis on the various levels of scrutiny They ask whether the law in question classifies people based on one of the suspect classes. If so, they apply strict scrutiny and usually strike down the law. This is the view of the current right wing of the Court, who harp on phrases like "colorblindness" in describing the Constitution.
Subordination theorists take a much more nuanced view. They view the purpose of the 14th Amendment as not to ban laws that classify people based on one of a particular list of classifications, but as to prevent subordination of one group to another; the 14th Amendment prevents anyone from being made a second-class citizen. Thus, to a subordination theorist, the various scrutinies are not important in themselves; they are merely a means to identifying laws that are based on prejudice, not policy. Laws that group people based on what car they drive are probably based on policy. Laws that group people based on race are probably—though certainly not always!—based on prejudice. Thus, the left wing of the Court does not strike down laws that help disadvantaged groups, because that is good policy, not subordination. The right wing of the Court, on the other hand, thinks that laws helping African-Americans and laws discriminating against African-Americans are equally invalid.
The easy part about same-sex marriage is that this is one area where classification theorists and subordination theorists will be in strong agreement. A classification theorist who thinks that sexuality is a suspect classification will apply strict scrutiny simply by virtue of the classification; for a subordination theorist, the fact that bans on same-sex marriage are designed to create second-class citizens will be determinative. The laws get strict scrutiny.
Strict Scrutiny: The question of "narrow tailoring" and "compelling government interest" are highly fact-based inquiries. Indeed, Court's distinction between permissible and impermissible affirmative action in the higher education context, for example, is precisely based on how narrowly tailored the law is. But bans on same-sex marriage are so sweeping in scope that narrow tailoring will have very little work to do here. Either bans on same-sex marriage serve a broad, sweeping, compelling government interest or they do not. Absent any theory at all that says that they do, I say they do not.
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