Regardless of unanimity or not, as of now, SSM is legal. For an issue of wording, the wording of the laws was always going to need to be changed to enable same sex marriage, the ruling just forces it to happen faster.
Regarding the states rewriting laws, given cases such as the DOMA, I suspect that the laws would have been such that several states would have ended up with a civil union type situation with reduced opportunities as compared to normal marriages, which was part of the reason for suing in the first place. doing so only kicks the bucket down the road for another few years, while doing this now forces it to a conclusion for everyone immediately, without creating a secondary class of marriage for gays.
From Obergefell vs Hodges:
https://www.law.cornell.edu/supremecourt/text/14-556There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right. Bowers, in effect, upheld state action that denied gays and lesbians a fundamental right. Though it was eventually repudiated, men and women suffered pain and humiliation in the interim, and the effects of these injuries no doubt lingered long after Bowers was overruled. A ruling against same-sex couples would have the same effect and would be unjustified under the Fourteenth Amendment.
Also:
The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943) . This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.” Ibid.
To quote from Loving v Virginia:
Section 257 of the Virginia Code provides:
Marriages void without decree. -- All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process.
MR. JUSTICE STEWART, concurring.
I have previously expressed the belief that "it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor."
Note the first bit could be changed from a white person and coloured person to a man and a man/ a woman and a woman? Different law, same result: a couple is denied a marriage due to a law. Your law as stated would also break
Justice Stewarts concurring remark if the word race was changed to gender.
Also from Loving v Virginia:
Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). 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 marry, a person of another race resides with the individual, and cannot be infringed by the State.
again, change race to gender and you have a ruling that equally fits same sex marriages, without needing to change any other wording. Entire sections of Loving need only the wording to be changed from racial to gender to be equally applicable.
Link for Lovin v Virginia:
https://www.law.cornell.edu/supremecourt/text/388/1From Obergefell vs Hodges:
In support of the Respondents, Idaho Governor C.L. “Butch” Otter (“Butch”) contends that alternative arrangements for people who identify as gay—such as single parenting, step parenting, cohabitation, or adoption—provide enormous societal benefits. Nonetheless, Butch claims that such arrangements “cannot compare to the overall benefits that a married, biologically-intact home environment provides.” Butch maintains that by limiting full legal recognition and benefits conferred by marriage solely to heterosexual couples, the state better promotes family stability and social norms.
So even the defending party in Obergefell was admitting that the current situation was such that while gay unions were better than nothing, they didnt compare to marriage for the benefits offered.
This is further supported further down:
to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules.
There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.
For the idea that it might have problems with the first:
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.
SO, the Affirming decision was based on the idea that the definition of marriage as it currently stands once more needed further definition to match the ideals of the 14th.
What about the dissent?
The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. Ante, at 12. In reality, however, the majority’s approach has no basis in principle or tradition
When the majority turns to the law, it relies primarily on precedents discussing the fundamental “right to marry.” Turner v. Safley, 482 U. S. 78, 95 (1987) ; Zablocki, 434 U. S., at 383; see Loving, 388 U. S., at 12. These cases do not hold, of course, that anyone who wants to get married has a constitutional right to do so. They instead require a State to justify barriers to marriage as that institution has always been understood. In Loving, the Court held that racial restrictions on the right to marry lacked a compelling justification. In Zablocki, restrictions based on child support debts did not suffice. In Turner, restrictions based on status as a prisoner were deemed impermissible.
These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. See Windsor, 570 U. S., at ___ (Alito, J., dissenting) (slip op., at 8) (“What Windsor and the United States seek . . . is not the protection of a deeply rooted right but the recognition of a very new right.”). Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim.
So the dissent as worded here and elsewhere is that the redefinition of marriage is the reason for the dissent, as it had not been redefined to allow gay unions before, so it should not be changed now.
It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits. Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.
Again, the dissent here is not opposed to the majority, but questioning whether the majority was made on the right grounds, and whether it should not ave invalidated the side laws surrounding marriage as opposed to the marriage itself.
Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs
Again, not against gay marriage, but against the perceived problems it may have with the court ruling, and as to whether it was constitutional to do so.
Had the wording of the opinion been different, the end result may well have been 6-3 or more, but the dissent was as to whether the court could do what it did, not whether the court needed to do what it did.
PeterZ wrote:SCOTUS' decision in Loving was unanimous and could be achieved by simply stating any reference to race with regards to whom could marry who was unconstitutional and should be ignored. What remained of those laws would still work to achieve the one and and one woman definition. Nothing new need be added.
As I posted in an earlier post citing the South Carolina law on marriage, simply deleting and prohibition to same sex unions won't work for that law.
South Carolina Law wrote:SECTION 20-1-10. Persons who may contract matrimony.
(A) All persons, except mentally incompetent persons and persons whose marriage is prohibited by this section, may lawfully contract matrimony.
(B) No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, sister, grandfather's wife, son's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, brother's daughter, sister's daughter, father's sister, mother's sister, or another man.
(C) No woman shall marry her father, grandfather, son, grandson, stepfather, brother, grandmother's husband, daughter's husband, granddaughter's husband, husband's father, husband's grandfather, husband's son, husband's grandson, brother's son, sister's son, father's brother, mother's brother, or another woman.
HISTORY: 1962 Code Section 20-1; 1952 Code Section 20-1; 1942 Code Section 8556; 1932 Code Section 8556; Civ. C. '22 Section 5522; Civ. C. '12 Section 3743; Civ. C. '02 Section 2658; G. S. 2026; R. S. 2157; 1712 (2) 476; 1961 (52) 47; 1996 Act No. 327, Section 2, eff May 20, 1996.
SECTION 20-1-15. Prohibition of same sex marriage.
A marriage between persons of the same sex is void ab initio and against the public policy of this State.
HISTORY: 1996 Act No. 327, Section 1, eff May 20, 1996.
The bolded wording is rendered unconstitutional. The rest needs to be changed or SCOTUS' ruling would allow for closely related people of the same sex to marry while those same relations could not marry if they were of the opposite sex. We discussed this already.
So I have no issue with SOTUS declaring the prohibition on interracial marriage as unconstitutional. Nothing further was needed.
The current ruling does mean that state laws need to be rewritten. Had SCOTUS ruled that any state law on marriage required being rewritten in some specified period of time or have the same sex prohibitions voided at the end of that period, I would have had no problems at all.
Some states would have created other unions defined as men and men or women and women. Others would have redefined marriage altogether to include same sex unions. Each solution would be appropriate for the way that State addresses marriage and same sex couples would have the civil protections they desire. There would also be no snafus like the gaps in the South Carolina marriage law.
Now, I ask you. Do you believe the Colorado baker has 1st Amendment protection in declining to accept making a cake that expresses an idea that is inconsistent with his religious beliefs? He will engage in any other sort of commerce with respect to his baking business with the same sex couple. He will only decline engaging in an activity that supports what he does not believe in.
