The Supreme Court of the US has made a mess of same-sex marriage
The justices of the United States Supreme Court, citing the regret of deciding Roe v. Wade, (1973), before it played out in the court of public opinion, have left married same-sex couples with an uncertain and fragmented union.
While same-sex couples can marry in some states and have that marriage recognized where it’s legal, and by the federal government, if they are unlucky enough to live in a state that refuses to recognize that marriage they will still be subject to the same discrimination that the Court has said violates due process and equal protection clauses.
This creates an alternate world where a couple traveling through states can gain, lose, gain and lose rights as they cross each border. Meaning if they are involved in a car accident in a state that doesn’t recognize their marriage; one spouse could lose the right to speak for the other if he/she is rendered unable to speak for themselves or worse, be refused visitation rights.
While the motive of the Supreme Court is noble – wanting to preserve state rights – it fails to acknowledge precedent and fails to recognize that privacy rights fall under the United States Constitution. Under similar conditions, regarding anti-miscegenation laws, Loving v. Virginia, (1967),the Court found that:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State (emphasis added).
This is exactly the standard that the Court should apply to marriages of same-sex couples. And while they have purchased more time, the bill will come due. We can see this as states grapple with ways to either prevent marriages, scaring one Oklahoma rep so much that he wants to ban all marriages, or expand their laws to include same-sex couples.
In some cases, the lower federal courts have stepped in to order states to allow same-sex couples to marry. These orders have resulted in almost comical responses from state officials, such as in Utah, where they have closed their offices to prevent any marriages from taking place.
The point is that the states have shown that they cannot be trusted to ensure rights, involving hot-button issues; look at what republican-led states have done to abortion rights. Even with an order directly from our highest Court, it wasn’t until 2000, some 33 years later – that the last state, Alabama, removed its anti-miscegenation laws off the books. Never before has the saying “those who do not learn from history are doomed to repeat it” been more appropriate. This issue will be back before the Supreme Court and they will have to clean up this mess they made.