BrooksMustGo

Who, it sounds like you\'re making a constitutional argument in favor of granting marital status to gay folks. If you\'re doing that, then we are talking about the federal system. If we\'re doing constitutional analysis, we are talking about equal protection. If you\'re going the equal protection route, then you\'re asking the courts to provide the solution.

My basic argument would be a separation of powers sort of thing.

1. Marriage is a state thing. The feds have never dealt with defining marriage. Yesterday, clear majorities of citizens voted to define marriage for heteros only. Seems to me that if a state wants to define marriage like that, they are well within their authority to do so.

2. It seems to me that the legislative solution is the way to go here. Give folks a chance to vote and then it\'s done.

3. But even if you sued on the basis that the amendments violate equal protection, I\'m not sure you win. I would bet heavily that the current court would either not hear such a case or rule that equal protection doesn\'t apply.
Equal protection has traditionally been applied to classifications based on race/national origin which are almost always ruled to be a violation of equal protection. However, the court has heard some cases on gender as a class, but the burden of proof is higher for the party claiming discrimination. Sexual orientation has never been ruled to be a class on its own.
I think the states could make an argument that they have a legitimate interest in defining marriage (for a variety of reason including administration, probate, divorce rules, keeping court dockets clear, uniformity, simplicity and even custom [a personal favorite of Scalia\'s]). States like Arkansas might have a problem because their amendment doesn\'t just define marriage as being between a man and a woman, but also as a stick to beat gay people with.
So if the court bought the idea that sexual orientation was it\'s own class, then they might strike down the parts of the amendment that encourage the discriminatory behavior.

4. But if the court struck down the discriminatory add-ons to the amendments, I doubt the court would re-write the amendments under some federal definition of marriage. Seperation of powers would preclude the court from laying out a federal rule for determining what marriage is. Another court might see it differently, but I\'m 70% sure that O\'Connor won\'t and she\'s the deciding vote even if the other 8 justices deadlocked (and I really don\'t think they would, I think you\'re more likely to get a 7-2 sort of ruling).

The bottom line is that states can amend their constitutions if they want to. People are entitled to vote on it however they want. The majority seems to be ruling and the minority had a chance to be heard. It may not be particularly enlightened, tolerant or generous, but it doesn\'t seem to be illegal.

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