If the Constitution protects gays’ moral and sexual choices, as Kennedy affirms, then their choice to marry logically is also constitutionally protected. Which means, by definition, that state bans are unconstitutional. Scalia, dissenting in the Windsor case, saw it coming from a mile away:
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’ ” couples in same-sex marriages. Supra, at 18. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status…
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples, see ante, at 25, 26. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.
In other words, said Scalia, the takeaway from the Windsor decision for lower-court judges wouldn’t be “the states can do what they like and the feds must comply with what each state decides,” it would be “gays have a fundamental liberty interest in marriage that no government, federal or state, may infringe.” What you’ve seen over the past few months in the drumbeat of pro-SSM federal rulings is Scalia being proved right. By the time the Supreme Court is asked to decide whether states can bay gay marriage, Kennedy will have a few dozen lower-court precedents implementing his Windsor reasoning to cite as support when he inevitably decides that gay marriage must be legal everywhere.
I wonder how the progressive left would feel if states and municipalities took the same tack in opposing gay marriage that progressives have in opposing the Second Amendment guarantees of the RKBA?
What if a thousand, or ten thousand, legislative bodies, from city councils to state legislatures and regulatory bodies began to impose “reasonable, rational” restrictions on the rights of gays to marry. Maybe six-month waiting periods, thousand thousand dollar license fees. Mandatory three month training programs in child care. A limit on the number of times gays can marry – once per ten years, perhaps. A requirement that condoms be readily available at the bedside of every married gay couple, subject to inspection by the state authorities. Those with HIV forbidden to marry, because of the danger of spreading the disease.
I mean, the courts are letting that strategy work with guns. Why not gay marriage?
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