The Lesbians will file under 14th Amendment Equal Protection Clause.
Which gets to the crux of the question. Which has higher precedence, the 1st or the 14th amendments? When does one right enable the trampling of another right? Or is there some Solomon solution that strikes a balance. Something like, the state must allow a gay couple to be married but state can’t force someone to perform the ceremony against the tenants of their faith.
The justices and judges need to think very hard about the consequences of their rulings as their decision can be used against the progressive agenda in a number of ways.
The problem with filing under 14th Amendment (14A) Equal Protections Clause (EPC) is the following. The states have never amended the Constitution to expressly protect so-called gay “rights,” gay marriage in this example. So misguided, constitutionally clueless NY state officials are actually in blatant violation of Section 1 of 14A for trying to use vote winning, but constitutionally unprotected pro-gay state policies to trump constitutionally enumerated rights which 14A expressly prohibits the states from doing.
Regarding how constitutional lawmakers had intended for 14A to be understood, consider that the Supreme Court has historically clarified that 14A did not add new rights to the Constitution as “blind leading the blind" NY officials are evidently trying to suggest by trumpeting the EPC like constitutionaly clueless, special-interest bureaucrats in other states are.
“3. The right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the Fourteenth Amendment, and that amendment does not add to these privileges and immunities. It simply furnishes additional guaranty for the protection of such as the citizen already had [emphasis added].” —Minor v. Happersett, 1874.
In fact, the Supreme Court’s clarification of 14A reasonably reflects John Bingham’s official clarification of that amendment in the congressional record, Bingham the main author of Section 1 of 14A where the EPC is found.
“Mr. Speaker, this House may safely follow the example of the makers of the Constitution and the builders of the Republic, by passing laws for enforcing all the privileges and immunities of the United States as guaranteed by the amended Constitution and expressly enumerated in the Constitution [emphasis added].” — Congressional Globe, House of Representatives, 42nd Congress, 1st Session. (See lower half of third column.)
Again, misguided, pro-gay NY state officials are foolishly following in the misdirected, 14A-violating footsteps of pro-gay activist officials in other states.
“The Lesbians will file under 14th Amendment Equal Protection Clause.”
That only applies to state action, not private.