So glad you asked, Angel.
Just looking for something to sink my teeth into.
Banning same sex marriage violates the constitution because, as has been discussed in this thread, it applies the protections of marriage to some couples and not others, solely on the basis of discriminating against homosexuals. If there is going to be a law that affects the liberties of some people and not others, especially ones directly involving the government, there must be some compelling external reason. This is how the Equal Protection Clause of the 14th Amendment works. The law, both federal and state, is not allowed to arbitrarily discriminate. If it wishes to discriminate, it must prove that it has a good reason. No such reason has ever surfaced.
Regarding "it applies the protections of marriage to some couples and not others", I can see where that is indeed a significant matter.
If there is no other recourse for such necessary protections than to marry, then that's a concern.
It seems that the human nature formation of "a couple" is key here.
I don't believe anyone would rationally argue that gay couples aren't couples as there are simply too many observations that support the inclusion of gays in coupling.
So really it all starts with the decision to couple or not.
Those who choose to be "single", well, they do without some of those protections that marriage affords. But, they made their choice with regard to the calibrated issue of "coupling", and they chose not to couple.
That seems to be the pivot here, whether people choose to couple, and by coupling I mean, obviously, with a commitment that supports the reasoning for said protections.
What Prop 8 supporters are arguing, however, is that gays have those protections via civil unions .. and if all the marriage protections are not included in civil unions then civil union laws need to be changed to include them.
Prop 8 supporters are saying that would allow gays to "couple" in commitment with equal protection.
Prop 8 supporters are asking for their cultural tradition of marriage to be left alone, to remain defined as "between a man and a woman as husband and wife", and for constitutional equal protection to be afforded
in an equal but different manner.
Would that not be sufficient?
Prop 8 would be supported by the SCOTUS and states would immediately begin hammering out changes to civil union statutes to provide equal protection.
My question then is would that solve the equal protection clause of the 14th amendment.