Gabriel, on Galois, responded to my post about SSM and Equal Protection, and I regret that to a certain extent I was unclear. I will try to clarify some of my arguments and in the process respond to the points he made. I apologize if I misconstrued some of his arguments, but I don't believe any such misunderstandings undermined the theme of my post.
I'll deal with the first point first and the others in later posts. Time constraints do not allow me to respond to all the points at once.
The first charge is that I mischaracterized his argument that intent is irrelevant if the statute at hand uses gender specific language, because classifications based on gender are suspect on their face. Thus, heightened scrutiny is necessary to "'smoke out' illegitimate uses of gender."
I didn't really mischaracterize his argument, but I was not clear in mine. I'll try to be more clear this time around.
One problem with his argument is that it cannot be applied to all states. Let's use NY as an example. In Hernandez v. Robles, 2005 NY Slip Op 25057, 7, the recent NY Supreme Court case requiring the state to recognize SSM, the Court noted that NY's Domestic Relations law does not specifically use the terms 'man' and 'woman.' That led the Court to conclude that NY's Domestic Relations law "defines jural marriage without any reference to the sex of the parties to a marriage." So it appears that in NY that the marriage laws are gender-neutral, and at least under Gabriel's analysis, need not be subjected to heightened scrutiny.
Other states do have laws and constitutional amendments that explicitly define marriage as between a man and woman (although many states have laws that deny recognition of SSM). So in those cases, the laws are not gender-neutral. But does that automatically subject them to heightened scrutiny?
The Supreme Court has constantly ruled that racial classifications are by their very nature subject to strict scrutiny. It has also applied intermediate scrutiny to gender classifications. But are the laws in question a classification based on gender? If the laws only disallow SSM (such as the laws of Alabama), then they are classifying two different types of unions: marriages between a man and a woman, which are recognized, and "marriages" between members of the same sex which are not (there are other types of so-called marriages, such as incestial but for the purpose of this argument, we'll ignore them). Therefore the classification in the statute is not gender-specific.
If the law requires a man and a woman (Arkansas for example), then the law is gender specific. But is the law a classification? To be a classification, the law must distinguish between different groups. The law in Craig allowed woman to buy alcohol at a younger age. The law in US v. Virginia only allowed men in VMI. But these marriage laws do not distinguish between men and women in any way. They require the exact same actions on the part of both groups.
Arkansas marriage laws require that both a man and a woman marry a member of the opposite sex. This is not an argument that they both have different but equal burdens. They have the same burden.
I know you did not bring in Loving in this vein, but you did mention Loving in the context of equal burdens. In Loving the law required Whites to marry Whites and Blacks to marry Blacks. The classification in that case was that Whites could only marry Whites and Blacks could not marry Whites. I'm having trouble finding the actual text of that law, but given its motivation it is not a stretch to assume that Blacks could marry Indians but Whites could not. If this fact is true, the law classified to the extent that it banned Whites from marrying anyone but Whites but allowed Blacks to marry Blacks and Indians. The law did therefore impose different burdens on the parties, which immediately made it a classification and subject to strict scrutiny.
Obviously, even if the law had imposed equal burdens, the Court would have struck it down. The Court would then have had two constructions of the law: it could have viewed it as a requirement that Whites marry Whites and Blacks marry Blacks and assume the law classifies the two groups; or it could have found that the law imposed the same burden in that it required the two races to marry their own race. If the Court wanted to uphold this law, it probably could have on the second construction, even if it did not want to get into the issue of original understanding (which probably supports this law, BTW). Courts often choose between two different constructions based on the conclusion they wish to come to. This idea is found commonly in contract law, where different constructions lead to drastically different outcomes.
There is no doubt the Warren Court wanted to strike down this law. The standard construction of all racial laws is the first construction I offered. That is, the court will assume that there are equal but separate burdens. Once the Court notes separate burdens, it recognizes a classifications based on race and triggers strict scrutiny.
But do the courts automatically frame the issue this way in gender issues? Meaning where there are restrictions that apply to both genders equally do the courts construe these facts as a classifications and require heightened scrutiny or does the court claim there is no classification at all? Neither US v. Virginia or Craig v. Boren dealt with this issue and I haven't found a Supreme Court case that has.
The truth is if the court automatically finds a classification in gender related laws and applies intermediate scrutiny even if the burdens are equal but different, it does not follow that it will when the issue is SSM. In Lawrence, the Court specifically refused to deal with the Equal Protection issue. Justice O'Connor who did deal with that argument, applied a higher version of rational basis because the law distinguished based on sexual orientation, but did not find gender discrimination. In Romer v. Evans the Court similarly did not find gender discrimination but discrimination based on sexual orientation. I've yet to see a federal precedent that framed the issue the same way you have.
Getting back to the point I was making in my original post, how we frame the SSM issue is of great important. Courts have to frame the issue a certain way, and how they frame it has huge practical ramifications. If we say that the law requires men to marry women and vice versa, then the law is classifying based on gender and would be subject to heightened scrutiny. But if we say that the law is merely requiring both parties to do the exact same thing (i.e., marry people of the opposite gender), then there is no gender classification but there is a classification based on sexual orientation. Two recent cases in NY use these two constructions (although the constructions in those cases are not based on the classification found in the statute, but on the effect of the statute). Hernandez v. Robles viewed the restriction on SSM as a gender-based classification. An even more recent case, Seymour v. Holcomb, 2005 NY Slip Op 25070, 3 (N.Y. Misc., 2005), however, viewed it as a classification based on orientation because both parties are obligated to do the exact same thing.
Courts therefore have to frame the issue one way or the other. One could say that people would use the concepts underlying the restrictions as a reason for construing it one way or the other. If one believes that the restriction is based on the prevalent view at the time that homosexuality is immoral, then she would most likely see the resulting statute as a ban on SSM and not as a classification based on gender. If, however, she viewed it as misogynistic (or paternalistic if you prefer to use that term) then she'd probably construe the law as a classification based on gender. So, doctrinally, it really comes down to how one views it, which was my original point.
Judges have total discretion over this point, sort of like when they have to figure out the proper level of abstraction. Of course we could also say that the judges simply figure out which way they want to rule and frame the issue accordingly, but that would be activism, wouldn't it?