Following Up: Jeffrey Rosen responds to Jonathan Rauch at TNR. He thinks the rational basis test fails. He may have a point (the fact that the court didn't apply strict scrutiny surprised me too(, but I'm not yet convinced by any of the arguments that Massachusetts has a reasonable interest in denying same-sex marriage.

Under strict scrutiny, though, I think my position is well borne out. It isn't the institution of marriage, per se, that is at issue; it's the fact that state (and federal, for that matter) governments use that sanctioned relationship as a basis for policy (taxation, inheritance, medical decisions and visitation, child support and custody). Once the state decides to extend benefits to married couples, without any option for homosexuals who desire a simlar relationship with all the attendant benefits, equal treatment is violated.