« on: October 28, 2009, 02:24:09 PM »
sexual orientation discrimination, and specifically anti-same-sex-marriage ordinances discriminate on the basis of sex. My friend Austin is a man. I can marry him because I am a woman. If I were a man, I would not be allowed to marry him. Similarly, my friend Evan cannot marry Austin because Evan is a man. If Evan were a woman, Evan would be allowed to marry Austin. Anti-"gay"-marriage ordinances discriminate against Evan on the basis of Evan's sex. This is not constitutional (under rational basis or intermediate/strict scrutiny). This is exactly analogous to Loving, where prohibiting whites from marrying blacks as well as prohibiting blacks from marrying whites was explicitly held to be discriminatory and NOT "equal treatment." That was held in the 1960s not to constitute equality in the meaning of the Equal Protection clause.
Sex discrimination demands heightened scrutiny when the statute/law is facially based on sex, as these ordinances are. It's kind of mushy whether it's intermediate scrutiny, strict scrutiny, or something in between. Depends on who you ask, but sex discrimination at least gets "intermediate" scrutiny.
(Although same-sex marriage ordinances have been overturned on rational basis review, I believe.)
I don't see the analogy to Rostker, which is still good law for a number of doctrinally different reasons. (Not to mention wrongly decided in the first place.) (Nor to the combat exclusion as a policy, which may be what you're referring to.)
The Bill of Rights, and arguably the Supreme Court, exist in order to ensure that the majority does not have free "democratic" reign to oppress the minority whenever it feels like. That's the Carolene Products point, and it gets at the underlying point of homophobia and bigotry, which is what these laws are really about, just as Loving acknowledged that what was really going on was racial purity as a means of reinforcing white supremacy. Oppression by the majority is something I am extremely attuned to, and I have absolutely no qualms about the court stepping in to do its job of preventing it.