Gay marriage and the Constitution

This is sort of off the top of my head.

There are two completely separate Constitutional arguments for gay marriage, one (very) strong, one weaker (but I believe winnable).

Under the first argument, states are free to define marriage however they like, subject to their own state constitutions (Massachusetts', for example, mandates gay marriage). However, state laws must be given "full faith and credit" by other states, meaning that a gay couple that gets married in one state must be treated as married in another state, regardless of that state's definition of marriage.

The clear analog is common-law marriages. Some states do not recognize common-law marriage. However, if a couple is considered common-aw married in one state, then they move to another state, the second state is required by the Constitution to treat them as married.

Currently, there is a Federal statute called the "defense of marriage act", or DOMA, which states that gay marriage need not be given full faith and credit. There have been no challenges to this law, because any such challenge would be "unripe"(no one has been placed in a situation to be affected by the law). Once a challenge is brought, I cannot see any way that the law will survive Constitutional muster. This, I believe, will be the ultimate resolution.

The weaker argument (although one which I believe is correct) would actually determine that gay marriage is man-dated (pun intended) by the Constitution. Sexual orientation has been explicitly ruled to not be a Constitutionally protected category. Of course, that could always change, but I don't think it's necessary.

There are several "levels" of Constitutional protection for discrimination based upon membership in a class. Laws which discriminate based on race, for example, aresubject to "strict scrutiny", meaning that the law must be narrowly tailored to meet a necessary government interest.

Discrimination based upon gender is subject to "middle scrutiny". This means that any law which makes a discrimination based upon gender must be closely related to an important government interest. Limiting marriage to heterosexual couples arguably discriminates based on gender, in that a man is granted a right that a women is not. To wit: the man can marry a woman; for example, Angelina Jolie (I will address the counter-argument momentarily). This is government discrimination against women, and must pass middle scrutiny (Im sure you see that I could reverse the terms and say it was discriminating against men as well).

I have never seen any rational description of an important government interest that is served by limiting marriage to heterosexual couples. If there is no important government interest served, there can be no discrimination based on gender.

Here's the counter argument: "Steve, you dumbass", you say, "marriage doesn't discriminate based on gender. Everyone is free to marry someone of the opposite sex." I agree that the situation can be framed in that manner. That's why I think this argument is weaker than the one above. However, if you look at this rule coldly, it seems very clear to me that there is a line being drawn based on gender. At core, men are able to do something women are not. Similarly, women are able to do something men are not. The fact that these rights "cancel out" is immaterial from an equal protection standpoint. Separate but equal is not sufficient for equal protection.