Always? Even before the 14th Amendment was passed?
Related question: was the 19th Amendment actually superfluous?
Good point. A better answer (based on the same logic) would be, “It has been unconstitutional since the 14th Amendment was ratified, though you knuckleheads didn’t establish the protocol for retroactively concluding this until the following century, and were too ignorant of the actual nature of this class of people to know how to apply the protocol until even later.” 
ISTM, yes, it’s superfluous.
I think such decisions are best made through the legislative, rather then the judicial, branch. I really don’t want 5 people telling the 300M of us when some new scientific fact has emerged.
I tend to agree with this. But barring that, I at least prefer they consistently follow the protocols they themselves established. That’s better than winging it completely. And while there may be gray areas of “fact,” asserting that homosexuality is neither chosen nor a mental defect, nor something that unfavorably impacts an individual’s adjustment, seems pretty inarguable except by the lunatic fringe. The American Psychiatric Association has not considered it a disorder since they removed it from the DSM in 1973, 40 years ago. This doesn’t feel like SCOTUS making shit up, it’s more like, “Hey, that’s now common knowledge.”
So, if that’s not controversial, I don’t understand how they reject heightened scrutiny. In fact, to agree more strongly with you, I’d probably say that they need nothing but the 14th Amendment–a legislative output–to determine that gays may not be discriminated against in such a manner. So says the legislature!
Did y’all know in Utah, a marriage can be illegal if the partners can reproduce?
So basically the anti-SSM reproduction-based arguments are bullshit.
Wait, what?!
I suppose I could name a couple of examples of such, but none that would be specific to Utah.
Care to share, or are you just enjoying the teasing too much?
I already pointed out that these “protocols” are not what you think they are. Did you miss that? Really, the “protocols” look to me like just winging it. Like pasting a fig leaf over a desire to dictate public policy from the judicial bench.
We are first and foremost a democracy. Let’s not forget that.
Bingo. There is existing and long-standing law that formally divorces (as it were) legal marriage from reproduction (and in a state which is likely to be among the last to accept same-sex marriage), so does this not undercut any argument that homosexuals should not be allowed legal marriage because they cannot reproduce?
Unless one is okay with the concept that the state can at the same time block a marriage because the prospective spouses can’t reproduce and another marriage because they can.
And, by the way, the state doesn’t care if a marriage can produce children or not, if that marriage is acceptably “normal”.
You really don’t understand “rational basis”, do you? It doesn’t matter if you can construct a better law or find a flaw in the existing law. As long as the current law is related to a legitimate interest of the state, then so be it. I know everyone thinks they are ever so clever in constructing situation that would better serve the alleged interest of the state, but that simply doesn’t matter.
Missed the edit window…
It’s an interesting intellectual exercise to think of laws that might better serve the “reproductive” argument, but the court needn’t concern itself with such considerations under a rational basis test.
No, I actually responded to it. I referred to their protocols as “squishy.”
Gosh, I’ll try, 
My bias is strongly toward deference to the legislature, with the voice of the people being the ultimate decider and not some judicial judgment. I find the concept of a “living constitution” repulsive. But I don’t think the levels of scrutiny are as arbitrary as you’re suggesting (though I do agree they are looser, with borders less bright, than I’d prefer). “Winging it” to me would be creating a new filter every time such a case came up, without regard at all to prior process. I think they can easily decide this as I described in a logical manner relative to their protocols, consistent with the general guidance those protocols provide. And that would not seem arbitrary, to me at least. Deciding that homosexuality doesn’t even require consideration as a suspect class would feel completely arbitrary to me, a complete ignoring of their own loose rules. That was my point. An amendment that resolves the whole thing might be cleanest of all, but that ain’t happening.
And if that’s the case, judicial review and interpretation is a necessity. “We are first and foremost a democracy” is true, but as a practical matter, legislative boundaries like “Congress shall make no law … abridging the freedom of speech” cannot be applied as written, without qualification, not if we want the wheels of society to continue turning. And, like it or not, the Court has already heard from the legislature on the matter at hand, who has commanded us that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Democracy has spoken! Now what? I ask that the judiciary at least base their judgments on such matters on the actual words of the legislature, with a logical argument established on a foundation of logically reasoned prior decisions, also consistent with legislative guidance on other matters wherever possible.
Not sure we’re in real disagreement. I have a strong dislike for made-up judicial policies and law. But I also know that judicial review itself is made-up and that ship has long since sailed. So I at least hope they follow somewhat consistent and predictable policies and protocols and not completely make stuff up out of whole cloth as they go along. The lesser of two evils I guess. Hence, what my response to Scalia will be when he phones me this weekend.
Yes, as I mentioned earlier, “It is really easy to advance a rational basis argument, and people need to understand that a cockeyed, partially illogical, inefficient law can still meet that very low standard.” In this thread (and others) people seem to think it blindingly self-evident that DOMA misses that mark, when even President Obama’s Justice department acknowledges that DOMA passes the rational basis standard. I’ll mention that again, in case anyone missed it. It is REALLY easy to meet that standard.
I still don’t see it. Even granting that a cockeyed and partly illogical law can pass the rational basis standard by inefficiently advancing a legitimate state interest, what’s the legitimate state interest? Are we trying to make it so more kids are raised in stable two-parent households? Are we trying to encourage opposite-sex couples to confine their intercourse to married relationships? Are we trying to increase the number of adoptions by folks in long-term committed relationships?
Name it, and then tell me: if we ban gay marriage, what happens with regard to that goal?
I get that it can be an inefficient means to that end. I’m fine with that. But how does it help advance that interest at all?
Gotcha. Not only am I not a lawyer nor American, I’m not really reading closely enough.
ISTM that if homosexuality is not a suspect class (I think it should be, and DOMA should fail on that standard), then this gets over the incredibly unchallenging rational basis threshold. Maybe bisexuals will be persuaded to marry opposite sex partners given this prohibition, and procreation occurs that might otherwise not have. Weak sauce, a stretch, you say? I would absolutely agree. But I would also say it’s enough for the rational basis standard, and all the objections (including those noted in the cite) ignore how rational basis has typically been applied. That’s not to say SCOTUS won’t ignore their own precedent and policy and do whatever the hell they want, of course.
However weak its effectiveness, however illogically or inconsistently this rationale is otherwise applied, so long as a legitimate state interest can be conjured up (and some “state interests” in prior cases have been doozies), the law gets over this extremely low hurdle.
But once we understand that the “rational basis” test is a judicially created way of articulating a decision and not some kind of magically necessity, courts can actually get back to doing their job as a check on the legislature. As we learned from Romer and Lawrence, rational basis doesn’t have to be a code word for “let the legislature do as it wants, no matter the rights involved or the minority status of the group”. And lest someone pop in with the old canard of “it’s not the judiciary’s job to overrule stupid laws”, I will simply point out that it IS the judiciary’s job to temper the will of the majority when it denies rights to the minority. That’s what equal protection and due process are all about.
Of course I do. I recognize that the state can make such laws - I just recognize the resulting contradiction, inconsistency and unfairness which strikes me as undesirable but is nevertheless legal.
Some of us are indeed capable of recognizing that the state can legally pursue a bad result. Do you “really” understand what that means?
Only to the extent that this denial is unconstitutional.
Yes, in the theoretical. As a practical matter the law is festooned with dictates that create lots and lots of disparate impact, and most of those don’t run afoul of the Constitution because it doesn’t involve a protected or suspect or quasi-suspect class. Once you abandon their levels of scrutiny and the hurdles they established for creating categories, the 14th Amendment’s protections are too broad to be practical (similar to the 1st Amendment). Countless laws would not withstand a certain strict reading of it, one without qualification of any kind. Taken to another extreme, SCOTUS can decide whatever they want, however they want. That’s good, I guess, if they agree with you. Not so much when they don’t.