Anti-Gay Marriage As Sex Discrimination

It started with this fascinating and challenging post about how denying same-sex couples the right to marry could be sex discrimination, since you are barring a woman from having the same rights as a man (namely, to marry a woman).

This makes much more sense to me than the due process argument, since to me the due process argument focuses more on whether all males or all females are treated the same (which, in my mind they are, since all men can marry woman, and vice versa. Furthermore, all gay men can marry woman, and none are given special consideration. So while you may have a constitutional problem nationwide if some states allow it while others do not, it could swing either for or against, and I'm not sure that is the argument you want to take to the court.).

I think, however, that this response is a pretty good take down of the sex discrimination argument. I especially liked the bar mitzvah/bat mitzvah comparison. Woman and men in Isreal - and Judiasm, I assume - get different ceremonies with different levels of respect, even. But both get ceremonies. I realize a "civil union" is distasteful for some, and probably rightfully so for a number of reasons, but I'm not sure it has to be, or even should be. People aren't ashamed of honory doctoretes.

This is especially insightful, or at least especially close to my viewpoint:

It strikes me that both sides have a point, and most likely the best thing for
courts to do under such circumstances, where they’d basically just have to take
sides in a culture war pitting feminists against religious and cultural
traditionalists, is to stay out of it–so long as analogous rights and
obligations are available to the plaintiff through an analogous ceremony, in
this hypo the bat mitzvah.

That said, there are two easy answers: remove government from what is essentially religious ceremony/determination (in fact, proponents of Prop 8 frequently point to the original, religious meaning as their lynchpin) and make all such unions contractual, or pass gay marriage laws state-by-state.