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By Lawrence C. Levine Putting aside for a moment the emotion and rhetoric that surround the notion of same-sex marriage, one thing becomes apparent: The lawyers for groups seeking to maintain theheterosexual monopoly over marriage have their work cut out for them. It is hard to justify limiting the vast array of benefits that come from marriage to other-sex couples. Of course, the government has no authority to tell a church who it can and cannot marry because of the separation of church and state. But when we are talking about civil marriage - a purely secular institution - the state has to justify excluding a significantsegment of loving couples from its marriage bounty. Marriage is a fundamental right, and the government has to show a compelling reason to keep gays and lesbians from participating. The right to marry is much coveted, as evidenced by the lengths to which some of those who enjoy marital benefits are willing to go to exclude others from its reach. Observe too the efforts made by those, such as gays and lesbians, who want to become members of the club. In order for the government to treat societal groups differently, it must show, at a minimum, a rational basis for doing so. What is that basis? The U.S. Supreme Court has held that neither tradition nor disapproval justifies unequal treatment. If tradition were enough, bans on interracial marriage would have remained intact. Furthermore, in Romer v. Evans (1996), the Supreme Court made clear that gays and lesbians may not be disfavored by government simply because some segment of the public dislikes them. Lawrence C. Levine is a professor of law at the University of the Pacific, McGeorge School of Law in Sacramento.
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