Prop 8 ruling: Right answer, wrong question

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
     — 14th Amendment

The federal judge’s ruling Wednesday that rejected California’s ban on same-sex marriage may have been the correct answer to the wrong question.

At one point in his ruling Chief U.S. District Judge Vaughn Walker cited the 14th Amendment’s Equal Protection Clause and wrote:

“Plaintiffs challenge Proposition 8 as violating the Equal Protection Clause because Proposition 8 discriminates both on the basis of sex and on the basis of sexual orientation. Sexual orientation discrimination can take the form of sex discrimination. Here, for example, Perry (a plaintiff) is prohibited from marrying Stier (another), a woman, because Perry is a woman. If Perry were a man, Proposition 8 would not prohibit the marriage. Thus, Proposition 8 operates to restrict Perry’s choice of marital partner because of her sex. But Proposition 8 also operates to restrict Perry’s choice of marital partner because of her sexual orientation; her desire to marry another woman arises only because she is a lesbian.”

If you really want to split hairs, the 14th Amendment appears to bar states from making any distinctions between people based on marital status. No distinction in taxes, in insurance benefits, in community property, etc. A single person and a married person should be treated no differently under the law, right? Does the state then have any business even sanctioning marriage and therefore discriminating between singles and marrieds?

Also note that the 14th places no such constraint on the federal government, only the states.