Equal Protection doesn't require the creation of SSM. Equal Protection requires the government to be colorblind. In the present context, it requires government to be blind to a person's sexual preference. Thus, it would be unconstitutional to pass a law prohibiting a gay man from marrying a woman (call it the "Cole Porter Act"). However, if you're asking the state to create SSM, you're not simply asking the government to be sexual-preference-blind. Instead, you're saying that the government is constitutionally obligated to change the definition of marriage so that it's simply an agreement of any two people, regardless of sex or sexual preference, to form a binding social union. And if such an institution is constitutionally required for any two people, what would be the constitutional argument for not allowing more than two people to enter into such unions? "That's not what a 'marriage' has traditionally been"?
Perhaps society will choose to re-order itself so that groups of all sizes, sexes, and sexual preferences can form "marriages." To argue that such re-ordering is required in order to comport with Equal Protection is insane.
Tuesday, November 18, 2008