The story of marriage equality under state constitutions is quite mixed. The story begins when the Hawaii Supreme Court in Baehr v. Lewin indicated that strict scrutiny should be used for the prohibition of same-sex marriage on the ground it was gender discrimination. The court explained that it was solely a person’s sex that kept him or her from marrying someone of the same sex. The Hawaii Court remanded the case to the lower court for the application of strict scrutiny under the Hawaii Constitution’s use of this test for gender discrimination. Before this could occur, though, Hawaii voters amended their constitution to prevent marriage equality.

The Vermont Supreme Court found a right to same-sex civil unions, but not marriage for gay and lesbian couples. The Massachusetts Supreme Judicial Court in a historic ruling interpreted its state constitution to create a constitutional right to marriage equality. It rejected that civil unions could substitute for the right of gays and lesbians to marry. The New York Court of Appeals, though, rejected marriage equality under its constitution in a four-to-two decision…