The court did not use the right reasons. If they used full faith and credit clause it would be different since if you are married in one state then move to another you don’t have to get remarried.
Isn't that a violation of States Rights?
I though that was a big deal, legally speaking?
Well, this is the same group who did RVW, and that's completely nuts. They should have been impeached of that insane ruling. This just seems a bit strange for a lay person.
Because the state's do not get to pick and chose which legal paperwork from other state's they are willing to accept, particularly when the paperwork is needed for cross-state issues or business.
The fact is same-sex marriage went to SCOTUS because some states wanted to ignore legal paperwork from other states, and they were told "Not only no, but now same-sex marriage is legal at the Federal level, so you have to accept all paperwork, allow ceremonies, and do all the other legal bits hetero couples had."
The ruling had little to do with full faith and credit, nor does the correct (IMO) reason why same sex marriage should be legal (I get that not everyone was saying this, just it's easiest to respond to everything at once). It's also not why it was campaigned for, people also wanted to be able to get married in states that didn't have it as legal.
It's a 14th amendment case using equal protection, and a 5th amendment case using due process (this is where Roe got it's bullshit start from). Now in the discussion this split off from, on Abortion, there was some question of the impact of the end of Roe on Obergefell. One of the 4 arguments the majority opinion put forward was dependent on individual autonomy, which has its roots (maybe not origin, IANAL) in Roe, so yes, that
particular argument could now fall (and to be fair, the rest are crappy too, but more the Emperor has no clothes, not the Emperor has no head, which is where that argument is now).
IMO, while the opinion was basically shit, the ruling was correct. As for state's rights, those were limited by the 14th amendment in that state action & laws are restricted by the rights guaranteed by the Bill of Rights. This was done on purpose to stop the formerly Confederate states from stopping blacks from having the right to vote, bearing arms, etc.
They should have been limited by the privileges and immunities clause (Clarence Thomas takes every chance he can to harp on this), but instead SCOTUS decided fuck that, we don't like blacks (It's the Slaughterhouse Cases), and basically decided to ignore it in a classic case of why non-originalism is shit. So instead, the rights guaranteed by the constitution against the Feds have slowly been "incorporated" against the states. For more on this:
Now the real argument for Obergefell is just making a puzzle:
- We have Loving v Virginia, stating that marriage is a fundamental right and incorporating it against the states.
- We have another case (I forget what it's called, but I've referenced it in this thread I think), saying that a state discriminating against a sex hits the equal protection clause as you aren't equally protecting the sexes, which means sex discrimination is what is known as a 'suspect class'.
- Now we add Bostock, which says that same sex discrimination is necessarily sex discrimination.
Add these three cases up, and you have gotten to Intermediate Scrutiny (at least) applied to a same sex marriage ban done by the states. And with a real issue of even passing a rational basis test, it's gonna fall.
This, however, says something else.
Age of consent is a seperate issue to poly, one is about protecting kids, the other is about multiple consenting adults. Obergfell is the gate to Utah allowing poly. Poly wasn't culturally accepted, back then.
Is that still going to be a major issue, I wonder? And, when Islamics start pushing, will that affect things?
So there are two real reasons poly isn't going anywhere. First, banning polygamous marriage doesn't hit the suspect groups of sex, so same sex marriage isn't opening that door for them. By this I mean you can't set up a situation where swapping someone's sex suddenly enables them to polygamy: no one can.
As for a religious freedom argument, that's dead because
Employment Division v Smith, a Scalia ruling that says if a state has a generally applicable rule, it doesn't have to make exceptions for specific religions (i.e. a ban on smoking peyote vs an Indian religion having this a sacred).
Second, a ban on polygamy passes at least a Intermediate Scrutiny: implementing a way to track polygamy and make sure it works right would be incredibly difficult. Right now, given N people, there are about N^2 possible marriages (really N(N-1), but close enough). With polygamy, it becomes about 2^(N^2), as each pair of people (N^2) are in one of two states, married or not married.
If groups all must be married to each other, then we are at a huge number of possibilities, though less so, but there are still more problems as things meant for two people are now split for multiple. A state could reasonably argue these objections, while it couldn't for gay couples (that's an easy fix, tell people to stop checking sex on things and do less work).
