I’m listening to a reasonably erudite radio discussion of the merits of the federal case challenging California’s hideous Proposition 8. I don’t know whether the challenge will be successful but I do know that within a decade or two same sex marriage will be legal in all 50 states, and the arguments against it are going to look an awful lot like the old laws against miscegenation.
The best argument that the pro-8 people have – the best they’ve got – is that because there is a pretext for preventing gay marriage (protecting heterosexual marriage), no matter that that pretext doesn’t make any logical sense, that therefore the states should be able to discriminate because the standard that should be applied should be one that is sufficiently lax as to allow discrimination.
To me this boils down to equal protection under the law. The argument that the status quo is constitutional depends on making the case that gays are free to marry someone of the opposite sex, even absent love. This argument depends, of course, on people clinging to discredited notions of sexual orientation being a “lifestyle choice” rather than innateness. Twenty years from now this will be laughable but today we take it seriously.