ahbi's Journal: The ERA and Judicial Review

Take equality for gays: the constitution clearly bars discrimination, yet there is one group not allowed to enter into the same legal contracts as the rest of us. One day, a case will be brought to the SC for equality, and it will win. And just like other equality cases, it will have come decades too late. The Constitution always guaranteed that right; but the courts have yet to allow that right to be exercised.

No it didn't and doesn't guarantee that right.
This is a case that as a Constitutional student pisses me off. Not because I disagree with you morally, but I strongly disagree you procedurally. And as a lawyer procedure matters.
So, to make clear, we have left the substantive (ends, "should this be the right result?") argument and entered the procedural (means, "is this the right way to do this?") argument.

We tried to get equal rights for gays into the Constitution with the ERA (Equal Rights Amendment) and the inclusion of equal rights for gays was one of the main reasons the ERA got voted down.
The idea was that discrimination based on sexuality was also discrimination based on sex. As Constitutional law scholar Eugene Volokh said:

Many supporters of same-sex marriage, including those who challenge the opposite-sex-only rule as unconstitutional, argue that the opposite-sex-only rule discriminates based on sex. Some (though not most) state judges that have considered the question have indeed concluded that state constitutional ERA provisions mandate sex-blind marriage laws. It seems quite plausible (though not certain) that enactment of the ERA would increase the likelihood that courts would indeed mandate recognition of same-sex marriages. The arguments that the ERA would lead to such a result can no longer be dismissed, as it once was, as a "hysterical" "emotional scare tactic" "canards."

If (and I agree it is highly likely that they will) the SC rules that gays have equal rights, the SC will be adding rights into the Constitution that were never there AND they will be overruling the EXPRESS vote of the American people.

The Constitution is a contract, a social contract, and should be interpreted as any contract would be. You look at the intent of the people signing the contract when the contract was signed (or in this case ratified). Any additional evidence is non-admissible parole evidence.
Equal rights for gays was never in the Constitution. The Founding Fathers would not have put it in or contemplated it in 1787, nor would have Alaskan voters when they updated and entered into the Constitution circa 1948. So, you lose on intent given either the original intent of the original signers or a more forgiving "recent intent" standard for the most recent signers of the contract.

Also, we have an admission by those proposing the ERA that equal rights for gays was never in the Constitution. While Amendments aren't rare they are a non-trivial undertaking. You don't undertake that much work for something you already have. It is ludicrous to assume that they would put the ERA up for a vote (especially with the political liability that gay rights were to the ERA) if the Constitution already include equal rights for gays.

The only way you can rule that homosexuals are covered by the Equal Protection clause (or an equivalent) is to be intellectually dishonest. You have to your desire for the substantive outcome (gay rights) outweigh doing things the right way (passing a new version of the ERA, or more easily passing state/Fed laws).
You have to be willing to take the EXPLICIT will of the people and say "Fuck you, because I wear a black robe I can shit on democracy. While you little people cling to God and guns, I can deny your right to vote."
And you can say "well it happened in 2000". So, your counter-argument is that 2 wrongs make a right?

You want gay rights/marriage? Fine.
The correct way to do that is to pass state laws. Nothing in the Constitution says gays can't marry.
If you can't pass state laws then things aren't happening decades too late, they aren't happening because society doesn't agree with you. Instead, you know society doesn't agree with you and you want to cram your social views down their throats.
You can bitch about the religious right (a weak addled straw man since the late-80s), but they don't go to court to overturn democracy. They aren't going to court to force you to pray, or attend church on Sundays. They don't go to court saying "We know society doesn't agree with this. Fuck society. We are better than them. Help us enforce our will upon them."