Scalias tactic is of course quite clever from a political standpoint: it allows conservatives to oppose same-sex marriage without appearing to be intolerant.
Scalia and his disciples might indeed say they approve of same-sex marriage and the rights of gays in general they merely believe it to be a legislative, not judicial, issue.
As already noted, however clever it doesnt comport to Constitutional case law and the intent of the 14th Amendment. In order for that Amendment to be successful, its framers knew that due process and equal protection must apply to all persons any qualifications might give the governments of former slave states (or any state of a like mind) an advantage, excuse, or loophole to exclude their discriminatory laws from the Amendments requirements.
The Amendment states only all persons. Period. And to paraphrase the Plyler Court, women and homosexuals are persons in any ordinary sense of the term.
The REAL burden is on those who insist making such a fundamental change to society itself by meddling with one of its underlying pillars, something that evolved over the course of thousands of years for a REASON and it didn't end up including gay relationships -to prove it will either provide greater benefits to society as a whole, or at the very least not cause ANY negative, unwanted consequences by such a change.
In Lawrence v Texas, striking down state laws banning homosexual relationships as in violation of the 14th Amendment, the Court noted that neither tradition nor history is justification for laws or official practices that are un-Constitutional:
[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.WTF do you have?
The Constitution, its case law, and the fact no state has provided a compelling governmental interest to preempt the rights of those wishing to enter into same-sex marriage.
What rights are gays being denied?