adidasss

It is actually, look it up...

Continental European law has very little to do with Anglo-American but I have done pretty extensive research on the subject in doing my thesis (which is on same-sex marriage in America btw). I've read a lot of literature and have come to a conclusion that U.S. Supreme Court could find that the exclusion of same-sex couples from the institution of marriage is in violation of the Equal Protection Clause (more likely) and the Due Process Clause of the U.S. Constitution (less likely in my opinion).

As I understand it, in Equal Protection doctrine, the essential question would be whether gays and lesbians comprise a "suspect class" which is a group of people that has: a) suffered a history of discrimination, b) whose characteristics bare no relationship to their ability to contribute to society, c) the said characteristics are immutable and d) is politically powerless. I believe that there is a case to be made that homosexuals qualify as a suspect class and are therefore entitled to heightened protection (which means the State would have to prove that the legislation in question serves a compelling state interest and is narrowly tailored to achieve that interest. Most of the cases I've gone through show that it's virtually impossible for the state to do so).

However, a lot of courts have made the contrary conclusion (based mostly on the latter two factors, immutability and political power), meaning the legislation is only subjected to rational basis review where it's the task of the plaintiffs to prove that there is no rational basis for the government to exclude them from the institution of marriage, which they've never managed to do (it's enough for the state to claim that it has a legitimate interest in promoting procreation and child rearing in a dual-gendered family, with apparently no real evidence to show that they're better served in such an environment).

Anyhooo! There's no telling how the Supreme Court would rule on that issue but according to some of the literature I've gone through, it appears it's been unwilling to expand the list of suspect classes ever since the 70s.

With the Due Process Clause the central issue is whether gays and lesbians have a fundamental right to marry. A fundamental right would have to be "deeply rooted in the nation's history such that it is implicit in the concept of ordered liberty", whatever that means. Again, most of the literature I've gone through makes a pretty convincing case that the Court's previous jurisprudence can accommodate the expansion of the right to marry to include same-sex couples but there's really no telling because its jurisprudence has been incredibly inconsistent.

So, obviously, in such an equally divided Court as we have now, it would come down to one judge, hence the huge risk because in case of a negative decision it would send back the gay rights movement years if not decades.

You're right, I am gay, and I believe it's both legal benefits and social acceptance (or "the right to have their relationship accorded the same dignity and respect as with opposite-sex relationships/marriages" to quote someone or other).

The Supreme Court of California specifically resolved this issue and naturally I tend to agree. It held that giving same-sex couples the same (state, let's not forget that DOMA denies the recognition of any federal rights to same-sex couples) rights as opposite-sex couples but at the same time retaining the designation of "marriage" solely to opposite-sex couples violates the state's Equal Protection Clause, because such a "separate but equal" system inflicts appreciable harm to same-sex couples seeing as how the institution of domestic partnerships doesn't have the same dignity or respect as does the institution of marriage.

Also, I knew I had to make this distinction clear in my paper too, and here's the confirmation. This whole debate is about the civil institution of marriage, which is very different from the religious institution. The former is regulated by the state which proscribes the conditions for its formation and dissolution. The latter (its dissolution) wasn't even possible (and still isn't in certain religions) for a long period of time until the state seized control of marriage and started regulating it. Various religions are still free to proscribe whichever conditions they like for their marriages, the state can't interfere, but it's very important to note that these two institutions are not the same thing and haven't been for a very long time in America.

I think it's unlikely that the civil institution of marriage is going to be abolished any time soon because, as I've stated a few posts prior, the state has a significant interest in promoting stable relationships which create a positive (well, that's debatable) environment for child rearing which, in turn, is the number one reason why marriage is considered a "fundamental right".

Sorry for the long-ass post, I went all "lawyerly" ...

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