A look back ...

At the time, “sexual orientation or sexual preference just wasn’t recognized as a protected category” like race or religion, Mr. LaFond said. “I was giving Justice Blackmun a cert. memo based on what I understood to be settled law.” 

“It was the petition of two guys to get married, and that was it,” Mr. LaFond said this week in an interview. He wrote a two-page memo summarizing the case, Baker v. Nelson, concluding that it should be dismissed “for want of a substantial federal question.” The court adopted his advice with a one-sentence order.

An interesting article provides a look back to the first time the Supreme Court had to decide the same sex marriage issue, this time when they had less ability to deny review (thus the disposition there and it's limited meaning even without developing doctrine and other issues). We are dealing with a different day and age, when being a homosexual could prevent you from being allowed into the country and before the time when homosexuality was removed from the Diagnostic Statistical Manual.

Nonetheless, even on that level, the state ruling below left something to be desired.  The use of a dictionary definition* to provide a meaning of marriage had some merit (the dictionary provides a rough sense of current understanding), less so a reference to Genesis.  Also, the quote is telling:

The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.

We can find part of that -- the "union of man and woman" however isn't quite even shown. After all, polygamy was seen in that book.  Likewise, marriage even then was not merely about "procreation and rearing of children" unless it wasn't applicable to the barren or elderly.  Nonetheless, even there, the Supreme Court by that time had stated that rights and equality developed over time. The argument as to rights deem fundamental  is more tied to tradition there, but note even here it is selectively cited. Finally, putting aside I think the proper approach here is to look at the aspects of the right to marry and see if logically they apply, time changed the meaning of marriage along with same sex couples generally. 

"Marriage and procreation are fundamental to the very existence and survival of the race."

The Skinner case is cited here, but that case was about sterilization so that aspect of marriage was particularly important. But, marriage wasn't just about this -- you did not have to under common law to be able to have children to get married.  It is also a tad ironic a few years after Griswold to focus on procreation.  That case itself can be cited for a definition on the what marriage brings that applies here.  The state supreme court applied it narrowly, more so than various other courts at the time, as a marital intimacy case.  It would later be clearer that the Supreme Court understood it as a liberty case generally,  involving various choices over intimate matters. Lawrence v. Texas years later basically spoke of intimate association; the First Amendment claim was rejected here without discussion.  Baker thus clearly under applies Griswold, at least per later case law.

This article explains the Eighth Amendment claim also rejected (Powell briefly raises one in his separate opinion in Bowers v. Hardwick).  The basic idea appears to be that the state was requiring same sex couples to have unwanted sex re-assignment surgery to marry.  I'm unsure how this is a criminal matter though that might be a due process violation since it "shocks the conscience."  Also, the freedom of religion claim raised in early cases has a bit of bite -- a judge in Perez v. Sharp, the state ruling striking down an interracial marriage ban flagged it.  Marriage after all even today is seen as having an important religious component and this ways years before Oregon v. Smith that accepted neutral limits there.

Finally, the state ruling held that "no irrational or invidious discrimination" was present here, and there was "a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex."  This was before the expansion of the test required to justify sex classifications.  Rational basis is no longer the test. The issue of animus was not flagged, traditional non-recognition a harder case there anyway than modern day state constitutional amendments (state DOMAs).  Sexual orientation discrimination is not cited at all here. Thus, even Judge Sutton had to cover that separately. 

And, of course a lot has changed, including much more protection of same sex couples which increases the problems of explaining why you are drawing the line at marriage. To quote the ruling: the "Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same."  Things are not the same. And, the ruling even at the time was somewhat weak.  Finally, at the very least the later rejection of James Baker's discrimination claim against a state university for his marriage advocacy was quite questionable.

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* The marriage is different sex marriage because it is so this isn't discrimination any more than a woman claiming a right to be  a "father" repeatedly was the basic grounds of denial of these claims. Citations of dictionaries will not be as easy these days for that reason any more than old usage of "religion" to mean "belief in God and an afterlife."  Put aside that a full understanding of "marriage" over history would include same sex couples in some fashion.  Invidious discrimination resulting in only one form obtaining legal sanction is of help to the wrongdoers only so much.