One of the more important parts of the section on civil rights concerns the different tests used to determine whether the equal protection clause applies to a given discriminatory act. In some areas - drinking ages for example (and as you well know) - discriminatory decisions can be made and enforced. The question is always whether there is a justifiable reason why a particular distinction can be made between individuals based on race, gender, age or whatever.
As the notes show, standards vary. It is easier to for the law to discriminate based on age than gender, and gender than race. Each is covered, respectively, by rational basis review, intermediate scrutiny, and strict scrutiny. The controversy with gay marriage will require the courts - I believe for the first time, though I do not know for certain - to determine what standard would apply to sexual orientation. The lower courts have used intermediate scrutiny, bu the term "heightened scrutiny" has also been used to refer to this level of review. There seems to be a debate over whether intermediate and heightened review are the same thing.
Assuming they are, then the courts may determine that laws that impose a difference between people on the basis of sexual orientation "must advance an important governmental interest, the intrusion
must significantly further that interest, and the intrusion must be
necessary to further that interest."
So what is the interest the bans on same sex marriage promote?
For further reading:
- Will the Supreme Court be left behind on Gay Marriage?
