I think we need a Loving decision on the issue of same-sex marriage.
I'm also quite sure we're not going to get one.
In 1967 some states recognized "mixed-race" marriages, and some did not. Of those that did not some, like Virginia, actually criminalized such marriages (I haven't done the research; I don't know if that was true for every state that didn't recognize "miscegenation," but it was certainly the reason for the Lovings filing suit.) The Supreme Court swept aside all such statues as an affront to civilization. Well, the language wasn't that strong, but by now it might as well have been. Who among us would return to the days when "miscegenation" was a common term, and "Mixed-race marriages" carried a powerful social stigma, as well as the risk of imprisonment if you crossed the wrong state lines? Mixed-race marriages did not erupt across the country immediately after Loving was decided, but they became possible immediately after Loving was decided. Miscegenation even stopped being a common term for such marriages.
Now, nobody even blinks at them.
That another Loving decision is not in the offing for same-sex marriage is partly due to the makeup of the current Supreme Court. The recent rejection of the appeal of Planned Parenthood in the case of the Texas law effectively banning abortion clinics reveals the 5-4 decision that would likely be handed down if the Court ever had to come face to face with deciding whether same-sex marriage was as constitutionally protected as mixed-race marriage. But there are other reasons, as well.
In Texas, for example, same-sex marriage is not possible simply because it is not recognized as legal under state law. Mind you, it's very easy to be married under Texas law: simply tell people that someone is your spouse and you've pretty much established a common law marriage (although it's by statute, not common law), and created a community property estate. However, if you are both of the same gender, that marital estate is a nullity. It simply never exists. You won't be arrested for trying; you'll simply be ignored.
There was a reason states that didn't want blacks and whites to marry made such marriages criminal. How else do you control heterosexual marriage, except by age? Minors still need consent to marry under most state laws. Without consent, they can't get a marriage license, and without removing their disabilities of minority, they can't move together into a dwelling not owned or leased by an adult and so establish even the semblance of a common law marriage. Besides, if they claim to be married under that statue, the age limits in other statues simply nullify their claims. Adults who marry more than one person at a time are bigamists, and subject in most states to criminal sanctions. Again, we have to be able to declare some marriages legal, and some illegal, among heterosexual couples, in order to have even reasonable controls on marriage. But among same-sex couples? If you simply don't allow it, what harm have you done? Without the outrage of imprisonment simply for being married, where is the impetus to make a grand Constitutional gesture on this issue?
A lot of harm is done, of course, by denying same-sex marriages; but not necessarily in the eyes of the law. Or rather, it isn't quite the same harm as putting people in jail. I'm not sure Antonin Scalia and the 5 member majority of the Supreme Court would be all that upset with Virginia's miscegenation statute today, if that case came before the Court for the first time (or even again, given their relationship to stare decisis), and if they were, the problem would probably be the jail time, not the ban on such weddings. Criminalizing behavior is a different matter than simply refusing to make legal a relationship between two persons. You can't be deprived of your liberty for getting married in Illinois and then moving to Texas. If it is a same-sex marriage you bring,Texas won't arrest you; it just won't recognize your marriage.
Which is why we have the peculiar situation in Oklahoma, which has streaked ahead of Texas to "Most Neanderthal Position on Same-Sex Marriage, and Now Do You Remember The Tulsa Race Riots?" I don't mention the race riots lightly. I'd really thought by now I'd seen the end of such blatant governmentally backed discrimination against persons just because of who they are. The Oklahoma argument is that Oklahoma law and its state constitution don't recognize gay marriage. Well, the same was true when the Loving decision was handed down. Oklahoma's statute, declared unconstitutional by that decision, specifically barred "persons of African descent" from marrying persons of "non-African descent," which included marriages of blacks to Native Americans. Granted, the directive of the Secretary of Defense is not a Supreme Court ruling on the constitutionality of a law, but the argument of Loving is instructive here:
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 discriminations. Under our Constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by the State.Discrimination based on sexual orientation is no less invidious than racial discrimination, especially in the context of legal marriage. Oklahoma really doesn't have a defensible legal ground to stand on, at least not one that would stand up to Constitutional analysis. Oklahoma would have made the same argument, pre-Loving, for mixed-race marriages: what is legal in one state, won't be legal in Oklahoma, so such a marriage in Oklahoma would arrest you for your marriage (it was a felony prior to the Loving decision). What's the difference now? Oklahoma won't arrest you; that's all. Which is to say I don't see why the Loving argument doesn't apply to same-sex marriages as well; but it doesn't because the current Supreme Court is not likely to make that due process argument again.
There's a problem with Oklahoma or Texas or many other states not recognizing same-sex marriages. But there's something obscene about throwing such a tantrum that you deny benefits to everybody because you'd have to give benefits to people you don't like because of who they are.
I'm really trying to see the difference between that attitude, and the attitude that said mixed-race marriages were criminal. And the only distinction I can come up with is that same-sex marriages aren't criminal.
That's not nearly enough.