I think the constitutional issues coming out of this will be huge. Utah was admitted into the union on the basis of it banning polygamy. Seeing that the argument about 'state interest' has been shot down in two states, for maintaining marriage as between one man and one woman, I think the LDS church will soon be in a position to sue not only the state of Utah but the Federal Government over this issue. Since "family" is being defined in terms of who loves who and who can raise children (as opposed to producing them), there is no legal standing to ban polygamy.2) Prop 8 arguments
Oh and the comparisons to Dred Scott are entirely out of order. Dred Scott (and by extension Loving) was about the legal designation of blacks as less than human and therefore not even covered by the laws of the land. There is no argument being put forth that homosexual men and women are not human. Anti-Miscegenation laws were again based on white supremacist science that claimed that not only were blacks sub-human but because of that the offspring of such breeding would be sub-human as well.3) Follow up on Prop 8 Arguments (response to e-mail)
In my opinion the only equitable means of dealing with this issue that does not run afoul of religious liberties, is to have all levels of government get out of the marriage business. No city hall ceremonies. Marriage remains the social institution it is and would be performed by any religious or social group that the people involved wish to deal with. The states can do what they do when people form legal businesses. The submit an application to form a "domestic partnership" with as many or few people as they want. The state simply certifies the declaration of this domestic entity. That is all. Everybody has a domestic partnership regardless of what genders are involved or how many people are involved. This would legally help hospitals with privacy laws that prevent non-relatives from access to or making decisions for patients. Show your certificate and that's taken care of. I think the above is the best way to address the legal "equal protection" issue, without running into the sociology and cultural issue of what is and who should be recognized as "married".4) The Problem With The Latest Prop 8 Decision
The California constitution as enacted in 1849 is very clear as to what it considers "marriage". The word "marriage" appears exactly twice in the original California constitution:
Sec. 12. No contract of marriage, if otherwise duly made, shall be invalidated for want of conformity to the requirements of any religious sect.
Sec. 14. All property, both real and personal, of the wife, owned or claimed by marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as to that held in common with her husband. Laws shall also be passed providing for the registration of the wife's separate property....
Therefore for a justice to claim that prior to November of 2008 that any other marriage arrangement was legal or recognized under the California constitution is factually wrong.