When assessing a First Amendment challenge to an ordinance that prohibits same-sex marriage, does the court also have to consider the meaning of the First Amendment?

When evaluating a First Amendment challenge of this sort, we may examine not only the text of the ordinance, but also any binding judicial or administrative construction of it. And we are permitted - indeed, required - to consider the well-established practice of the authority enforcing the ordinance. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 131 (1992). All of these are essential as we try to make our way through the Scylla of regulations that are so tightly worded that the flexibility needed for administration is lacking, and the Charybdis of language so loose that, as a practical matter, courts become the licensing bureau.⁴.

Page 192