The marriage restrictions were not ubiquitous. Jane could marry Steve even while John could not. Billy Bob, Steve's brother, could never marry Steve because of his unique relationship to Steve. Continuing to disallow Billy Bob to marry Steve is not a violation of Billy Bob's right to equal protection, because nobody gets to marry their own brother.
While I agree with you on SSM, I don't think this is a logical response to the analogies raised by Nehalem, and it misses the real crux of the issue.
Indeed, Billy Bob is not entitled to marry Steve, because no one is entitled to marry a sibling. Similarly, John is not entitled to marry Steve, because no one is entitled to marry someone of the same sex. In both cases, there are other people who are entitled to marry Steve, so both are being discriminated against, right?
The real difference between the two, and the reason incest is a poor analogy, is that the crux of not allowing SSM is discrimination against people with an identifiable status, whether it comes from biology, learning, or some combination of the two. We think it's unfair that Steve can't marry John because Steve is a member of an identifiable group with a preference which they cannot change.
By contrast, there is no status of being pre-disposed toward incest. There are just individuals who are attracted to specific family members. Disallowing a particular behavior is one thing if it is just a behavior of an individual because we think the person does not have to engage in that behavior. When you disallow the behavior which stems from an immutable status, that is another thing entirely. You can disallow the behavior, but then you are dooming that person to a life of not being able to act according to who they essentially are. Disallowing SSM is status based discrimination which stigmatizes all members of a certain class. Disallowing incest is just prohibiting a behavior.
Another way to put it is this. If John cannot marry his sister Jane, it is no different than not being able to marry Suzy because Suzy isn't interested. He might really want to marry his sister Jane, but he can find another woman to marry. If John can't marry Steve or any other man, then he has no options because he isn't interested in women.
Bestiality is theoretically a closer example because it is a sexual preference and therefore may be a status of some kind, like homo and hetero-sexuality. The problem there was identified by Actuarial: marriage is a contract, and contracts under the law are only recognized where both participants are mentally competent enough to understand its terms. There are extremely good reasons for this. A "marriage" between a man and an animal is a unilateral arrangement. Contracts are bilateral and require mutual consent.
Polygamy is the best case for arguing hypocrisy since it may be status based, i.e. the preference for polygamy could in theory be biological, but is certainly based on culture and/or religion. However, the world is not ready for it yet. The 1960's would not have been a time to argue for SSM, because most gays were still in the closet then. They first had to come out and be accepted as people. This happened gradually over time. Note that the 1970's were not a time of arguing for SSM. They were still arguing that gays shouldn't be booted from the teaching profession, for example. Acceptance is a process and there is a time to embark on each step.
The trouble with polygamists is that, TBH, they are widely perceived as child molesters. This isn't fair to the ones who are not, but we aren't going to get recognition of polygamist marriage unless or until that perception changes. If the molesters are in reality a tiny percentage, then the non-molesters need to make that case in order to clean up their public image. If the molesters are the majority or a large minority, then it will not change until the molesting stops or is greatly diminished. This is a material reality that will have to change before there is even any point in arguing the case for polygamist marriage. I may agree in principle that non-molesting polygamists should be entitled to legally recognized marriage but there is no point in even discussing it yet; it has no chance of happening until the perception of polygamists changes, just as the perception of homosexuals has.
- wolf