However, no such barrier exists under either Federal or state law.

Congenitally sterile people get marriage licenses. Men who had vasectomies and women who had tubal ligations get married (sometimes to each other). Women who are past their child-bearing years get married. Gay people have the same ability to raise children that these people have: they can adopt and they can use surrogates of one kind or another. There is no real difference between the two groups as far as child rearing is concerned and it is difficult to counter an equal protection argument, particular after Lawrence v. Texas, 539 U.S. 558 (2003),

In my opinion this is an argument that has some weight. Again, I’m not at all sure what test, authority or reasoning the Supreme Court will ultimately use to judge gay marriage bans? It’s still unclear.

Legally speaking, if the test for gay marriage bans is to be:
What state interest is being protected by banning gay marriage? I don’t have a great response. Another way of asking the same question is what is the harm to society in allowing gays to marry?

There’s two components to “marriage”. The religious component and the legal component.

The Religious Component

The religious component is between people and their pastors and their deities. No one is arguing the government should be able to order pastors not to conduct marriage ceremonies – that’d violate the First Amendment. So what matters must be:

The Legal Component

The legal concept of marriage isn’t about sacred vows, romance or spiritual fulfillment. The legal concept of marriage is about birthing and raising children. It’s the basic principle of what a family is, at least historically – and historical common law is where our legal conventions surrounding marriage come from.

Apart from the protection against testifying against your spouse, marriage is legally relevant for 1) tax reasons, 2) inheritance reasons, 3) insurance reasons.

The government gives a tax incentive to keep parents together. While you can argue about whether its the government’s business, its difficult to make a case this hasn’t been historically considered a legitimate government interest over multiple millenia.

Inheritance is a similar story. Though spousal benefits are a significant issue, a simple look at the history of western civilization shows that the legal definition of marriage was originally about passing property to your children. Spouses came relatively late to the process.

Insurance rates are the one area in which marriage provides legal benefits not targeted at the raising of children. However, these are the acts of private companies … not the government. There’s nothing stopping an insurance company from treating civil unions as marriage for rate purposes.

I think you can make a decent case that homosexual couples who adopt should be entitled to similar benefits … but in general that’s not really what the LGBT movement is after. They want to make a statement — children’s interests aren’t on the radar.

If it comes down to a “scrutiny test” standard, i.e. is there a legitimate government interest in prohibiting same sex marriage, then I hope there is a good conservative attorney to argue for the prohibition.

To be clear, I’m not clear on how to best spell out that government interest.

Justice Kennedy’s majority opinion leaves quite open whether and to what extent a state must recognize gay relationships outside the criminal arena.

My take as a lawyer is that Equal Protection comes down on the side of civil unions, property rights, adoption rights, and tax laws. Wouldn’t bet one way or another as to marriage.

And we have heard the “we are going to force it down your throats with leftist judges” for a long time, we are still waiting to see it done.

31 states and counting say you are wrong.

Because if you can come up with just ONE, there are some teams of lawyers who could use your legal services pretty desperately, who are heading into some 6 to 3 headwind (see Lawrence) up in Washington DC next term.

Good luck with THAT, by the way. You better hope none of the conservative justices retire before January 2013, or you’ll be looking at a 7 to 2 headwind.