The Sec. 1 of the 14th Amendment to the United States Constitution reads "Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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."
The first sentence establishes the test for those subject to the amendment. If you were born in a state of the Union and considered a citizen of that state you are also citizen of the United States. If you are a United States citizen you are covered by the amendment.
Sentence 2 is what gives Sec. 1 the nickname of the "Equal Protection Clause". In effect it states that if a state allows one or more persons to do something, such as marry, it has to extend that same right to everyone else. This provision is not meant to be completely universal, or without restriction. States may create licensing schemes and make restrictions on those licenses as long as they can show a "compelling governmental interest" (general public safety and state specific economic concerns are two examples).This is what may be referred to as a strict level of scrutiny in which the burden of proof that the state restriction is in fact in the interest of something such as general public safety, and not towards discriminatory ends, lies with the state. Therefore any state stating that homosexuals should not marry should be made to prove that such restriction falls under a "compelling governmental interest".
I have yet to hear any state give a convincing argument before the court, especially in the Windsor case (where the state's brief was practically laughable or sorely disappointing depending on where you stand), which met this standard of review. Gay marriage is constitutional and always has been.
The right to marriage should be for all couples not just men and women. It is unconstitutional to not let them get married. I think it should be called marriage as well. Definitions can be changed to move society forward. Changing the definition will not stop a man and woman from getting married, so whats the big deal. Love conquers all! <3
When a couple gets married, the state is blind to the their orientation. It does not ask the couple if they are gay or not. If it were to ask the couple about their orientation, that would be discriminatory. Plus, how would such a thing be enforced. We'd have to make sure the couples are indeed gay. Not just two men trying to get benefits from the state (i.E. I Now Pronounce You Chuck and Larry)