We don't permit discrimination based on gender.
In my view, the tradition and concept of limiting marriage to heterosexual couples discriminates against one or the other member of the couple based on gender.
Here is why:
The issue is about gender. Do two people have to be of different genders in order to qualify for the government's protection and recognition as a married couple?
So the question is whether there is a significant reason for discriminating based on gender with regard to the marriage relationship.
The lawyer who was supposed to be defending Prop. 8 could not think of any such reason. He tried to claim that he needed only to show a rational basis for the discrimination. I think that he was wrong because not only is marriage a fundamental right (based on prior Supreme Court decision, Loving v. Virginia), but gender, not particularly homosexuality but gender itself is a condition that we are born with and that decides our destiny.
That is the way I see it.
You can't deny women the right to be policemen based on their gender even though policemen were traditionally men. You can't require that pairs of police officers who go out in a patrol car be heterosexual -- one man, one woman. Might be a nice idea, but it would be discrimination based on gender.
You can discriminate against a person if the gender or race or whatever prevents the person from doing what is required. You can discriminate, for example, against a very small man or woman who can't meet a height requirement for a job like police officer or who can't run fast enough or has some physical limitation that makes him or her unfit for the job. But that is not based on gender.
The Justices raised the primary issues. Is there either a compelling interest or at least a significant interest for California to prohibit gay marriage and thus discriminate based on gender?
The defense as I understand it argued yes, and said tradition defines marriage as heterosexual (does tradition define a police officer as a man? Hence questions about whether similar discrimination is otherwise permissible on the part of a state.) and whether the state has a compelling or significant ground for limiting marriage to heterosexual couples. (Hence, the issues of procreation and fidelity.) I never figured out what fidelity had to do with it, but I thought the Justices pretty much rejected the issue of procreation.
And in California, child-rearing and other issues are not relevant.
My guess is that the judges will decide that the defendant has no standing and therefore limit their decision to California, but I've been wrong before.
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