Yesterday, the Justice Department decided that Section 3 of the Defense of Marriage Act is unconstitutional, so it won't defend the law in court (although it invited Congress to do so). Somewhat remarkably, the attorney general wrote that orientation should trigger heightened scrutiny when laws make distinctions between gay and straight Americans.
If adopted by the courts, this would put orientation in the quasi-suspect class, along with gender and age. That means laws based on orientation would be presumptively unconstitutional; the state would carry the burden of proving some sort of significant need to keep them in place. [Race is considered fully suspect, so racial classifications trigger strict scrutiny, the most difficult test for the government to pass.]
Although the Supreme Court is inching toward such a move, it hasn't yet set that precedent. If the SCoTUS does elevate orientation as a trait protected by heightened scrutiny in the DOMA context, it's difficult to see how state bans could survive as a matter of 14th Amendment equal protection. As always, it seems likely to center on Anthony Kennedy, given his position as the key swing vote these days. Scholars will be studying cases like Romer for hints.
But I wonder how far the Court will really go. It seems to me that Kennedy isn't the kind of justice who relishes sea change. It's therefore possible the high court might rule on narrower grounds -- essentially saying that federal laws can't withstand equal protection scrutiny when a given state recognizes same-sex marriage. Such an approach would weaken DOMA, but it would leave the rational basis test (a much lower bar) in place for state bans.
Personally, that seems too muddy to me; equality is a free standing and supreme constitutional right, so it shouldn't matter what individual states are doing. For the sake of clarity, I say we're better off including orientation as a quasi-suspect class. That standard would assume people can choose for themselves who to marry in monogamous relationships, and the state would need a damn good reason to deny the basic right.
In truth, there's nothing even rational about state bans, let alone (semi) compelling. If you ask me, the more stable families we have, the better off we are as a society. And folks who are crying about gay couples marrying should instead focus on their own marital challenges.
Or for some comic relief, David Letterman has it right, imo:
"Gay people should have the same right to be miserable as the rest of us."