My pocket analysis of the same-sex marriage ruling

Ok, I broke down and read much of the Supreme Court's same sex marriage ruling. We have conservatives calling the majority opinion jumbled and impossible to follow, and progressives calling the dissents 'hysterical.' So I have to read them, don't I?

I started with Clarence Thomas's dissent. Why? Because the outtakes listed here were the most hilarious. Thomas's dissent was a mess. First he defines 'liberty' as mostly meaning 'freedom of movement.' So he ignores the freedom or right to marry. Even in discussing the most relevant earlier case, he ignores the right to marry, and says the case was important because people could be imprisoned for being a spouse or a minister in an illegal wedding. Yes, it's a bad opinion.

Comparison to prior case law

The most relevant case, Loving v. Virginia, was a 1967 case where Virginia refused to recognize the marriage of a white man and black woman who had married in Washington DC but returned to Virginia to live. The Supreme Court, in its ruling, overturned all state laws against interracial marriages. The analogy couldn't be clearer.

So how does Loving v. Virginia figure in this latest ruling? In the text, Loving is cited 22 times, mostly by the majority. Both Scalia and Alito ignore it, and Thomas makes the wackadoodle argument about imprisonment being the issue, not marriage. No one says that Loving was wrongly decided because it clearly wasn't wrongly decided.

So if Loving was decided correctly, how does this inform the current case? Neither side makes a slam-dunk argument. The majority doesn't hammer home the point of a couple's status changing as one or both cross a state line. That is the most ridiculous aspect of the situation, and why states are compelled to recognize the marriages and divorces performed by other states.

Recognition or chaos

But it's also a bit ridiculous for one state (Massachusetts) to unilaterally change marriage law in all other states. I supposed the other states could have decided to recognize marriages performed in other states, and maybe we wouldn't have had this ruling. But so many states resisted doing so, and the conditions were set for this confrontation. This was absolutely inevitable. Same-sex couples were:

• Going to get married where they legally could.
• Going to move to states that refused to recognize their marriages.
• Going to sue for their rights. 

I can't respect Roberts' dissent because he doesn't acknowledge this. He wants the legislative process to carry on. To make that decision, Roberts has to ignore the rights of couples who are legally married in one jurisdiction but living or traveling in another.

I stopped reading Alito's dissent because he was whining about how religious people were being labeled as bigots. Alito seems to have missed the facts that 1) a Supreme Court ruling can't prevent public opinion from going that way, and 2) a whiny dissent can't prevent it either. I didn't read Scalia's dissent because I figured it would make me too angry.

So, overall, I was disappointed with the reasoning of this decision. No group really wrestled with the problem of states being required to recognize marriages of other states, and what we're going to do when there are conflicts. Are we going to follow Loving, and now this decision, and force them to recognize the marriages, or are we going to do something else? Who gets to decide?

Finally, what happens when a state allow plural marriage? All hell breaks loose again.

Image:skydancingblog.com