I'm not really sure if we disagree here. Remember, my entire post was drawing a distinction between disallowing SSM and disallowing incestuous marriage. I'm not sure how you can critique what I said without addressing the comparison/contrast I was discussing.I was all set to disagree until that last sentence. Still, I think it's a side issue. Whether or not someone primarily attracted to the same sex can choose to marry (or to find attractive) someone of the opposite sex should be immaterial to whether or not government should have the power to deny her choice. Government should have to show a compelling societal interest to constrain individual liberty or to discriminate, not attempt to determine whether or not you have other options.
If a lady dates and beds both men and women, but decides to marry another woman, how is that my business? And if it's not my business, why then should government act in my name to prevent her from doing so?
I'm not saying that whether the individual has a choice is relevant as a matter of Constitutional law. I'm saying there is a moral distinction between disallowing these 2 forms of marriage because the impact of one is much worse for the individual than the impact of the other. Nehalem is saying the two are analogous and I do not agree.
If you are actually disagreeing and arguing that the two ought to be treated the same under the law, then we've broached another subject. You're certainly wrong under Equal Protection. Equal Protection applies to classes of people, with a sliding scale depending on how much historical discrimination those classes have received. People who engage in incest are not a class. Incest is a behavior, not a status or preference. Saying that people who engage in incest are a class is similar to saying we can't criminalize thievery because thieves are a class that is being discriminated against.
With gays we don't criminalize their behavior (i.e. sodomy) anymore, because we recognize that the behavior is a function of a status of being homosexual, i.e. the preference for same sex, which used to not be recognized. Back in the day, a homosexual was called a sodomite because no one acknowledged that there were people who preferred the same sex. But now we know it is a preference and a status and hence we should have heightened scrutiny when it comes to issues affecting same sex behaviors, such as SSM.
BTW, I think the state should have at least a rational basis to disallow any sort of private and personal behavior like sex/marriage, etc., including incest. I just don't think that disallowing SSM raises the exact same moral and legal questions as disallowing incest.