Why the 'Marriage Debate' is not properly a legal one

I have been trying to follow the various debates over same-sex marriage in state legislatures in the US. I will make the same claim here that I have elsewhere: Americans tend to debate over consequences of policies as if the rest of the world either doesn't exist or hasn't yet tried that which is under debate. The 'OMG! "Marriage" doesn't mean that!' argument is still alive and well and irrelevant in all of these debates, but the 'same-sex marriage will destroy society, make my heterosexual marriage worthless, and convince children that they should be gay' argument(s) live on. Now, this is not to say that proponents of same-sex marriage in the US ignore the fact that a number of countries have passed such laws and nothing like what is predicted came to pass. It is to say that opponents of same-sex marriage simply ignore these facts.I came across an editorial in the Bangor Daily News:

It is a sure sign of progress that lawmakers will soon debate whether marriage or civil unions are the appropriate way to recognize gay relationships in Maine. Nearly five years after Maine voters reaffirmed civil rights protections for gays and lesbians, the debate has taken a big step forward. The path leads to only one place — full recognition of gay couples as equal to their heterosexual counterparts (via The Marriage Debate).

Now, it is quite right to say that this editor meant 'full recognition of gay couples as legally equal to their heterosexual counterpart.' What I find perplexing is that the legal arguments are still being made in the US.In Canada, we simply looked at the part of our Constitution that said

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination (via §15(1) Schedule B, Constitution Act, 1982).

and realised that barring homosexuals to marry the person of their choice violated this provision and we couldn't think of a single good reason to deny it. Section 1 of the Charter "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." No one could demonstrate a justification to exclude homosexuals from an equal benefit of the marriage law, seeing as we are a democratic and free society.Are those people in the US, who are arguing against laws permitting same-sex marriage, tacitly implying that the US is a less free and democratic society than Canada? That somehow the US Constitution permits denying citizens a freedom based merely upon whom they wish to marry? Would the US Constitution permit a law denying the right to marry to those who had the same hair colour, or eye colour, or skin colour? Well, no.You might recall that many, many US states had laws that made unlawful any marriage of two persons form differing 'races.' This was challenged in Perez v. Sharp. In that case, The California Supreme Court ruled:

"A member of any of these races may find himself barred from marrying the person of his choice and that person to him may be irreplaceable. Human beings are bereft of worth and dignity by a doctrine that would make them as interchangeable as trains" (via 32 Cal. 2d 711, 198 P. 2d 17 (Cal. 1948)).

Finally, the US Supreme Court ruled that

"...the "freedom to marry" belongs to all Americans; marriage is one of our "vital personal rights" and the right to marry is "essential to the orderly pursuit of happiness by a free [people]."This same constitutional power was felt by the states that still had 'sodomy laws' in the Lawrence v. Texas decision by the US Supreme Court in 2003. The Fourteenth Amendment has made the religious conservative's strategies very limited in the rights movements (via Loving v. Virginia, 388 U.S. 1 (1967)).

The 14th Amendment of the US Constitution reads, in part,

No state shall make or enforce any law which shall [...] deny to any person within its jurisdiction the equal protection of the laws (via Amendment XIV, §1)

I do not think this is as clearly expressed as the Charter expresses it, but the USSC seems to think it is clear enough.Basically, from a principled legal point of view, denying same-sex marriage is a denial of a right for homosexuals to marry a person, of their choice, who wishes to marry them. If the opponents of same-sex marriage were as interested in honouring the law, as they seem to say they are, they would simply accept that same-sex marriage is guaranteed by their Constitution and leave it at that.But I suggest that need not be the end of it. There are a number of activities that are not illegal, but are arguably immoral. In Canada, abortion is a legal, medical procedure the appropriateness of which is determined by a woman and her physician. However, it might very well be that there are instances of abortion, where a woman and her physician agreed to the procedure, that are not morally permissible. Lying to one's spouse about after work activities is not illegal; however, I am sure we can all think of situations where one could make a perfectly good argument that doing so is morally impermissible.In short, argue that same-sex marriage is somehow immoral and try to convince people not to participate. I understand that this is no where near as effective as having laws in place; the power of the State is far more persuasive than the power of moral argumentation. But it certainly seems to me that if you can't convince people, using the power of the State to do your arguing for you is just intellectually lazy and cowardly.