Although private consensual homosexual activity might be legalized in this country without creating many problems, as it was in Great Britain, the expansion of marriage to encompass homosexual couples would alter the nature of a fundamental institution as traditionally conceived.
The Supreme Court may in the future decide that such alteration is beyond its competence and therefore that marriage should be confined to its present definition absent a positive move on the part of individual state legislatures to broaden it. If such proves to be the case, particular legal benefits available only to married couples might still be attacked on equal protection grounds under both the Fourteenth and Twenty-seventh Amendments.
If the Court granted homosexuals some of these benefits—without compelling states to grant marriage licenses—it might eventually create in effect a "quasi-marital" status. State legislatures might explicitly grant such a status, and specify the attendant rights. For example, benefits such as tax advantages, wrongful death rights and intestate inheritance could be granted more easily to the homosexual couple than could inclusion within the complete maintenance-divorce-alimony complex of laws involving substantial state regulation. An analogy can be drawn to the line of Supreme Court decisions which has given illegitimate children certain rights, albeit a less-than-equal status in comparison to their legitimate siblings.
(Note, "The Legality of Homosexual Marriage," The Yale Law Journal 82 [January 1973]: 573-89, at 588-9 [footnotes omitted])
Keith Burgess-Jackson, J.D., Ph.D. 