Most other restrictions of liberty do not impact “fundamental rights,” and thus do not trigger heightened review. Suppose that Washington banned sodomy, and the same case had come before the same judge two years ago. Theoretically, he then should have ruled that gays have a right to marry, but no right to consummate the marriage.

That said, you are right there is a weird leap in the judge’s ruling. Basically, he’s saying that on the one hand, discrmiinating against gays is no big deal, but on the other, a law restricting everyone’s right to marry members of his own sex, is. Go figure.

If this ruling sticks, it may raise all kinds of problems for other, less controversial restrictions on marriage. License fees, for example, discriminate against cheap bastards. Cheap bastards, like gays, are not a suspect class, and therefore would have a very difficult time mounting an equal protection challenge. But a substantive due process challenge? Why not? Ditto for incest, assuming one partner is either sterile or willing to become so. Add polygamy, and just about every other conceivable arrangement between consenting adults for which anyone might seek legal recognition. Since we’re relying on an amorphous “liberty” interest, where does it stop?

The more I think about it, this ruling is, potentially, much more dangerous than any rulings we’ve seen before. The equal protection slope is not nearly as slippery as the substantive due process one. The former can be stopped in its tracks by a court ruling that gays are a suspect class but polygamists are not. The latter does not depend on that distinction, only a colorable argument that whatever the plaintiff wants to do should be regarded as a marriage.