concluding my comments on the first contention - that family law 2-201 does not discriminate based on sex - let me just say this:
it's also cute that they argue that because the ERA was enacted specifically because women have historically faced discrimination 'based on an archaic precept that women ... are inferior', it therefore has no bearing on this case.
...right, and therefore it's perfectly fine if a law burdens men as a class, right? because the intentions of the framers was to redress women's grievances? except that it's not.
nor is it ok to burden AN INDIVIDUAL solely based on their sex, no matter if other individuals of the other sex are also being burdened solely on the basis of THEIR sex. the ERA clearly states that "equality of rights under the law shall not be abridged or denied based on sex." that's a statement about an *individual*, not about a class.
members of both sexes, on an individual basis, are protected from being burdened solely on the basis of their sex, whether or not the end result is the subjugation of women and whether or not these individuals may be found in both sex categories. this is made clear even by the cases that the majority tries to use to back up their decision.
when i, as an individual, am denied the right to marry any particular other individual *because i am female*, i am burdened *based on my sex*. it's that simple. the majority says,
"[It] does not separate men and women into discrete classes for the purpose of granting to one class of persons benefits at the expense of the other class. Nor does the statue, facially or in its application, place men and women on an uneven playing field. Rather, the statue prohibits equally both men and women from the same conduct."
but this is the truth: this reasoning only works if you ignore individuals. in marrying R the individual, men and women are indeed separated into discrete classes for the purposes of granting to one class (men) benefits (approval of a marriage license) at the expense of the other class (women). it does not prohibit "the same conduct" to men and women equally. it prohibits men from marrying a male individual, and women from marrying a female individual. those actions can never be "the same conduct" because the individual in question can never be *the same individual* for both a man AND a woman.
they just keep insisting that because it was not designed to subjugate only women, or to subjugate only men, it can't be a violation of the ERA... but the ERA doesn't say "a law cannot be designed to burden only one sex." if that's the constitutional amendment the people wanted, that's what they should have enacted. as enacted, a law cannot be designed to abridge or deny the rights of an individual based on his or her sex classification.
let's be very clear:
COUPLES DO NOT HAVE RIGHTS.
INDIVIDUALS HAVE RIGHTS.