Remember the days when the due process clause was used to strip away labor regulation anti-trust laws of corporations? It's maddening to note that corporations have more due process rights than sexual orientation does as a class.

There's a complicated history with the 14th amendment, and it's my layperson's understanding that we have to prove or be established as a suspect class or a quasi-suspect class before its protections apply. Courts have refused to grant us that status, and the lack of federal civil rights legislation concerning us will also make it easier for the Court to rule against us. It'll be funny when Scalia cites the lack of civil rights legislation as a reason we're not a suspect class in the Boies and Olson case, only two decades after he cited the presence of state-level civil rights legislation as a sign we weren't one back in his Roemer opinion.

In other words, it's my understanding that passing ENDA would help out in getting these cases through. While Scalia will remain unconvinceable since he's a partisan hack and a homophobe, it can't hurt for a coequal branch of government to officially recognize the need to fight against anti-gay discrimination

John, this post is wonderful if you are writing it somewhere in an isolated ivory tower at some prestigious law school. I expect your equally isolated law professor might give your essay an "A". But I fear that the reality of the political world might shoot your lofty academic arguments all to Hell.

Yes, John, you are probably correct, that DOMA is probably unconstitutional under the 14th Amendment, and possibly other constitutional clauses as well. In fact, it is conceivable that the SCOTUS might even make such a ruling --- as unlikely as finding five such votes within the current nine judges might be, it is at least conceivably possible.

However, such a ruling would be an instant recipe for the almost certain reactionary passage of the Federal Marriage Amendment (FMA). It would slide through Congress like Patton's proverbial crap through a goose, because no politician, GOP or Democrat, wants to lose his or her next election for "not protecting the sanctity of the family" ... the traditional, heterosexual family, that is. And I doubt that, under those circumstances, the GLBT activists among us could even organize a good rally against FMA before it got ratified by the required 38 states. Even as public opinion may slowly evolve toward favoring marriage equality, the "activist judges" argument still makes a lot of traction with an American public that does not want its rules dictated to them by an ultimate authority of non-elected non-representatives.

It is one thing to be on the side of justice, and entirely another to be able to make justice survive the political process. If this were not so, then the US would not have slavery and Jim Crow to disfigure its largely otherwise proud history.

We had better consider a SCOTUS challenge to be the "nuclear option". This strategy may work someday --- but we better be sure the time as right, because if such a challenge doesn't turn out well, it is likely to make things much, much worse for a very long time. Working for a legislative repeal is a much safer plan.

Now, stone me to death for pointing out the obvious.

I like your thinking. However, the difficulty with this is how the courts have previously interpreted the amendment. If a state has a rational basis for the distinction between two groups of people, then unequal laws are permitted. So, for example, a state may pass a law prohibiting opticians, but not optometrists, from selling glasses without a prescription. There is a rational basis for the state's judgment that optometrists are qualified but opticians are not. Courts generally don't look too closely when deciding whether there is such a rational basis.

When one of the groups is a "suspect" class, however, such as those based on race, or the law impinges on a fundamental right, such as those rights named in the Bill of Rights, then a rational basis isn't enough. Then, the state must show that its law is narrowly tailored to achieve a "compelling" state interest. The Supreme Court has suggested that a suspect class is a discrete and insular minority with immutable characteristics that is subjected to discrimination. The sticking point for us is the "immutable" part.

Whether or not the Supreme Court will decide that the restriction of traditional marriage to one man and one woman is a rational basis for distinguishing between straights and gays is anybody's guess. Same for whether, if gays are found to be a suspect class, or if the law is found to impinge on a fundamental right, the Court would find that the state has a compelling interest in preserving traditional marriage.

Yummy, I loved reading every scrap and comment while feeling like a happy glutton. Could it possibly be this simple (or simply complicated) I wonder. It seems to me that through the years we have so few "right times" to assert ourselves. My feeling is to keep the vinegar flowing toward the Democratic Party and work quickly. The times they are a changing and we are often behind them.

John, point us in a direction. Who needs our support?

Thank you John for your article which is very informative and thought provoking while also thought clarifying. A thing few articles on these subjects seem to be able to accomplish. And comments have been great, especially from Prof Gaudard