Gay Marriage and Gender Discrimination:

The question posed on this thread on Justin Katz's blog and elsewhere is "if we recognize gay marriage, then where is the next stopping point down the slipperly slope?" Or "how do we recognize gay marriage under a certain set of principles, but not polygamy?"

I can tell you the exact stopping point from a legal perspective: gender based classifications receive heightened scrutiny while numbers based classifications do not.

When asked to distinguish between interracial couplings & same sex couplings, a common answer offered by anti-gay folks -- and a good one -- is the 14th Amendment. The 14th Amendment's equal protection and other clauses clearly prohibit race based classifications. The legal test that is used is "strict scrutiny" and invariably, laws subject to strict scrutiny fail.

Under present jurisprudence, gender based categories are also "suspect classifications" but are subject to "intermediate" (as opposed to "strict") scrutiny (in the real world: the law may or may not be struck).

When categories receive no suspect classifications, they get a rational basis review, (which means that the laws almost always get upheld). Number based discrimination get rational basis review.

Thus, there is just as much logical legal distance between prohibitions on race (misceg.) & gender (homo) discriminatory marriages on the one hand and gender (homo) and number (polyg.) on the other.

Some may argue that it's "sexual orientation" (gays) not gender (men or women per se), that is really being discriminated against. In a way I suppose, this is correct. But "sexual orientation discrimination" *technically* receives no heightened scrutiny (even though Romer and Lawrence would seem to indicate that it does). It is better established that gender based classifications receive intermediate scrutiny and the ban on same-sex marriage is clearly a gender based classification.

Thus, if a court wants to recognize gay marriage AND wants to prevent further slide down the slope to polygamy, it would be best for them to analyze the case under the rubric of "gender discrimination." And this is exactly what the state court in Hawaii did when they issued their landmark decision striking down the ban on gay marriage there.