i should begin by going on record that i personally favor civil unions that are legally and economically equivalent to marriage, but i do not support gay marriage. (i should quickly add that i wish all of our LGBT brothers and sisters every happiness life has to offer, including openly serving in the military if they so choose -- but, as to insisting their pairings be legally recognized as "marriage", to put it bluntly, "this dog won't hunt".)

i also believe that there is a much stronger Equal Protection case to be made for civil unions over gay marriage. if we're going to invoke the technicalities of the 5th and 14th Amendment Equal Protection Clauses, then let's, indeed, get technical. strictly speaking, there is no denial of Equal Protection to gays who wish to marry. unlike the shameful miscegny laws that once were on the books, and which are often referenced in this regard, Lesbians and gay men have just as much right to marry the complementary gender as anyone else.

it seems to me that the real denial of Equal Protection arises from denying legal and economic equality to those who have no wish to, and/or aren't legally allowed to, engage in sexual relations, but who have formed permanent domestic partnerships nonetheless. for example, two sisters permanently live together and have no intentions of ever marrying. or, a son lives with an elderly father intending to be with him until the father's death. or, two lifelong friends who have no sexual interest in each other. why should sexual relations, never mind potential to procreate, be a prerequisite for their equal legal and economic rights?

for debate:

Equal protection requires that all avowedly permanent domestic partners who are both adults are entitled to the same legal and economic rights as marrieds, straight or gay.

Well, two friends who have no sexual interest in each other are legally allowed to marry - as long as they are of the opposite gender. There is even a phrase used to describe it... a marriage of convenience.

A cousin, wishing to take care of another cousin who is terminally ill, can in many states legally marry - as long as they are of the opposite gender.

While the State can't claim that it is necessary to exclude same-sex couples because of its interest in procreation, it can still claim it as an interest. As such, and being that there are certain sexual relations that are illegal, the State can constitutionally exclude some couples from marriage because their sexual unions would be considered illegal and allowing them to marry would be a sanctioning of an illegal act.

You see, marriage is a fundamental right and the State can't exclude or limit anyone's right to marry unless it is necessary to do so in order to fulfill an interest. Marriage does have something to do with procreation... it isn't an essential component, but the State does express an interest in regulating marriage for that purpose because it is one of the ways in which children become present in a relationships and marriage provides an ideal environment in which to raise a child. So, it is believed that couples that are married will have sex... the government accepts that fact and it serves one of the purposes of marriage to allow them to do so.

Can the government allow a couple to marry and then deny them the legal right to have sex? That is a question. Because it is illegal for two sisters to have sex, can the State tell two sisters they can't get married even if they are never going to have sex? Yes. It has to... in order to uphold the laws banning incest. The only way that the State can attempt to prevent siblings from engaging in sexual activity is by banning it. But, if the State has an interest in promoting procreation - while it can't exclude because of the inability to procreate - it can exclude in the interest of upholding existing laws. Allowing sibling couples to marry would be tacit encouragement for sexual relations between the couple... in direct contradiction of the laws banning said relations. What... will the couple sign something... swearing that they will never have sex? How could the State ever know that they upheld that agreement? The most effective way to prevent those sexual relations and uphold the ban on incest would be to prevent all siblings from marrying. Besides, the idea that siblings might have sex is not the only reason incest is banned. I am not justifying the laws banning incest, but they do exist and as such, incestuous marriage would be out of the question.

This may change, and cases like Lawrence may lead to such a change, but until that change occurs, it is perfectly constitutional to ban incestuous marriage.

All of that said, I am firmly against civil unions as an alternative to marriage. I find it humorous that those individuals who are interested in protecting and strengthening the institution of marriage might believe that civil unions are a good alternative.

When you allow one alternative to marriage, you open the door to others. You allow one alternative, can you constitutionally prevent others? Can we limit civil unions to same-sex couples? Mustn't we then open them up to heterosexual couples? Then you have heterosexual couples choosing civil unions over marriage. What becomes the point of having marriage then? Marriage means nothing if you allow equivalent alternatives. If we, as a society, allow same-sex couples to engage in civil unions, why not polyamorous civil unions? If, however, you restrict those benefits and obligations to marriage, you create no alternative. If people want the benefits, they must get married. And the State can constitutionally limit access to marriage if it is necessary to do so.