Religion & Law

First, even if we assume that non-validation does not curtail liberty, it may discriminate.  And, as it happens, a state's refusal to extend the benefit of law to same-sex unions *does* discriminate. Now, whether the discrimination is justified is a separate question.  Just on the discrimination issue:  As the Vermont Supreme Court put it in 1999, the refusal to extend the benefit of law to same-sex unions"effectively excludes [same-sex partners] from a broad array of legal benefits and protections incident to the marital relation, including access to a spouse's medical, life, and disability insurance, hospital visitation and other medical decisionmaking privileges, spousal support, intestate succession, homestead protections, and many other statutory protections."

Second, should we assume that non-validation does not curtail liberty?  Consider this point of view:

[I]f there are same-sex couples who want to form some sort of union and raise children--who want, that is, to have the rich, stable, recognized, respected relations that are at the heart of most people's conceptions of a worthwhile life--and, because of our ethical traditions, there are no social institutions to allow it, then we should create one or another form of them.  This too, I believe, is an issue of liberty.  No matter how many options there are already, this one, because of its centrality to characteristic human conceptions of a worthwhile life, must be added. . . .  What is at stake for same-sex couples are several of the most important components of a good life available to human beings. . . .  Some persons do not want deep personal relations or to raise children.  But the great majority of us do, and the [refusal to extend the benefit of law to same-sex unions denies] same-sex couples some of the greatest, most widely distributed, and most deeply embedded--sometimes even genetically embedded--least easily substituted ends of human life there are.

James Griffin, On Human Rights 163-64 (2008) (emphasis added).  See also Kenji Yoshino, "Marriage Partners," New York Times Magazine, June 1, 2008 (discussing "how much human flourishing is enabled by the [marriage] right and how much it is impeded by its denial"):  "As many gay rights advocates have claimed, the issue is less one of gay equality than of individual liberty."