If you are interested in the same-sex marriage issue and haven't read Judge Walker's Perry v. Schwarzenegger opinion, you should do so. It is one of many 14th Amendment based decisions about which I have mixed feelings. It is a decision which expands both individual rights (which is good) and the power of the federal government (which is bad).
Below are brief statements of my thoughts about the two major issues in the Perry case.
I believe that same-sex marriage should be just as legal as opposite-sex marriage.
The ideal solution would be to get the government out of the marriage business altogether. "Marriage licenses" are a fairly recent invention with embarrassing origins. It seems a bit absurd to have to get the state's permission to get married, just as it would be absurd to have to get the state's permission to have a child. These things are just far too personal to be subject to government licensing.
Recognizing, though, that the ideal solution isn't likely to be adopted very soon, legalizing same-sex marriage is a minimal reform that is needed. People are being harmed by the state's refusal to extend to them the same basic legal benefits and licensed social status that the state extends to others in substantially similar circumstances. Religious objections and the revulsion that some people feel toward homosexuality do not justify state-directed harm.
Religious organizations and private celebrants should be free to refuse to administer or recognize marriages that they see as objectionable. A minister could decline to officiate at a same-sex wedding just as a minister can now decline to officiate at a wedding in which one of the parties is a divorced person. The state, however, should not discriminate in this way.
I believe that the federal government has no valid role to play in regulating marriage.
There simply isn't anything in the U.S. Constitution giving the federal government any power over marriage. Again, I understand the 14th Amendment arguments, but reject them. That's too complex an issue to fully discuss here, but I might return to it in another post. Most importantly, the expansion of federal power, even when done for the short-term furtherance of individual rights, has the long-term effect of endangering individual rights. A weak central government is, in the long run, better for personal liberty.
If marriage is going to be regulated by government, then it should be regulated by the state or local governments. The federal government should neither ban same-sex marriage nor require states to recognize same-sex marriage.
To the extent that the federal government is involved in marriage (e.g., in the granting of Social Security survivor's benefits), it should recognize marriages that are valid under the laws of the states in which they were performed.
See also: Ted Olson's "The Conservative Case for Gay Marriage." Olson's argument for federal jurisdiction is flimsy, but his observations about the ways in which society would benefit from legalizing same-sex marriage are excellent.