Here is a New York Times story about the Defense of Marriage Act, which, among other things, defines "marriage" as the union of one man and one woman. Critics believe that the act violates the 14th Amendment's Equal-Protection Clause, since it prevents the federal government from recognizing homosexual "marriages."
Whether the act violates the 14th Amendment depends, in practice, on whether homosexuality is a "suspect classification," like race, national origin, alienage, and illegitimacy. If it is, then the strict-scrutiny standard applies, which imposes a heavy burden on the government. The government must show that there is a compelling state interest in having the law and that there is no less-restrictive alternative. If homosexuality is not a suspect classification, then the rational-basis standard applies, which imposes a comparatively light burden on the government. The government must show only that there is a legitimate state interest in having the law and that the law bears a rational relationship to that interest.
It's possible that a court will strike down the law even on the weaker, rational-basis standard. That's what happened in Goodridge v. Department of Public Health (2003), the Massachusetts case in which a statute that limited marriage to heterosexual couples was held to be in violation of the Massachusetts constitution. (Actually, only three of the four justices in the majority reasoned this way; the fourth employed the strict-scrutiny standard.)
Note that the New York Times story mixes legal and political considerations. Until now (in this post), I have addressed legal considerations. Let me say a few words about political considerations. It appears that the Obama administration is not making the best arguments it can to defend the Defense of Marriage Act. This is, of course, disgraceful, but we have come to expect that from our alien president, who, during the 2008 campaign, told the American people that he was opposed to homosexual "marriage." He says his views are "evolving." What does that mean? What new facts have come to light since the campaign? What new arguments have been presented to him? I don't think his views are "evolving." I think he lied to the American people. (A lie is a statement that one believes, at the time of utterance, to be false, and which is uttered with intent to deceive.)
Keith Burgess-Jackson, J.D., Ph.D. 