Ok, not to beat this issue into the ground, but two addenda on the topic of gay marriage…

First, yes, I know that gender bias triggers “intermediate scrutiny” in equal protection cases, not the “compelling interest” standard required when “strict scrutiny” (as triggered by, e.g., race) is in effect. I used the “compelling interest” language only because that’s the phrase Kurtz used, and because I don’t think the substantive analysis is changed much — current law should be stricken under either standard.

Second, while I conceded [incorrectly! see below] before that there’s no general “right to marry,” I was reminded in an e-conversation with my friend Greg Newburn that there are privacy concerns in play as well. Specifically, a key argument made by defenders of sodomy laws in Bowers v. Hardwick was that a higher level of privacy protection applies to the marital bed than to sexual intimacy in general. Now, my view of privacy rights is somewhat more broad, but under current law, that means that marriage, even if not a fundamental right, implicates the right to privacy, which is fundamental. And typically, higher levels of scrutiny are applied in equal protection cases when some further basic right — like privacy — is involved.

Update: Greg points out that there’s a far better case to be made than this. He was kind enough not to add: “why don’t you check this stuff in caselaw before you assume there’s no recognized right to do something?” Notwithstanding what I wrote below, apparently the courts have recognized a fundamental marriage right, and the case in which anti-miscegination statues were stricken relied not only on Equal Protection reasoning, but also Due Process. From Loving v. Virginia:

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

As noted above, when such further fundamental rights are implicated, the level of scrutiny is bumped up to “strict.” Kurtz’s fanciful scenarios about social collapse don’t even come close to meeting that standard.