The Equal Protection Clause of the Fourteenth Amendment prohibits the sort of irrational discrimination sanctioned by Proposition 8 and other state statutes and ballot initiatives that prohibit same-sex marriage. It is an inescapable truth.
For all the bromides about pausing while the country evolves on same-sex marriage, or waiting until more “sociological information” (as Justice Kennedy so helpfully put it) is available, laws banning same-sex marriage give homophobia the force of law, and treat gays and lesbians differently than everybody else based on nothing more than an “ick” factor. It is animus at its most vulgar, and it is exactly the sort of animus that the Fourteenth Amendment, which states “No State shall … deny to any person within its jurisdiction the equal protection of the laws” proscribes.
Same-sex marriage bans are not long for this world, however. Much in the way that we scoff at the notion that mixed-race couples should be prevented from marrying in order to preserve racial integrity, so, too, will we laugh at the notion that same-sex marriage somehow undermines or degrades so-called “traditional marriage.”
At the outset, “traditional marriage” is an untenable concept. The Christian historical view of the one man, one woman “traditional marriage” is a social construct based upon outdated and gendered stereotypes of the purpose of marriage, which views men as breadwinners and women as homemakers and child-rearers. Social constructs, by their very nature, are given to change. The obsession with “tradition” simply allows a majority to withhold rights from a minority simply because “that’s what we’ve always done.” But, “we’ve been doing it this way for a while” is an absurd argument for continuing to treat gay couples as if they are inferior to straight couples just because.