Obergefell v. Hodges, in which the Supreme Court ruled that every state is obligated to issue same-sex marriage licenses, surprised me with its breadth. In it the Court dealt with two distinct but closely related big-picture questions. First, is a state obligated to recognize a marriage license, including those for same-sex marriage, issued by another state when it differs from their own practice for issuing licenses? Second, must every state issue same-sex marriage licenses by law regardless of their current policy? I confidently expected the Court to rule on the former and punt on the latter. They didn't.
For nearly 20 years I have argued that same-sex marriage is miscast as a moral issue and obfuscated with all of these irrelevant discussions of tradition and the nature of marriage in Western society. To me, the question is and always has been solely a matter of the Full Faith and Credit Clause of the Constitution. Period. The FFCC mandates that states must recognize "public acts, records, and judicial proceedings of every other state." The FFCC is the reason that you do not need to get a new marriage or drivers license when you cross state lines. Your New York drivers license is valid in New Jersey, and when you get married in New Hampshire you don't need a new marriage certificate when you move to Vermont (and, crucially, you also don't need to return to New Hampshire to get divorced if you choose to do so).
In this light, my opinion has always been that as soon as gay marriage became legal in one state – any state – it was effectively legalized everywhere. Even if Hawaii were the only state to issue gay marriage licenses, the FFCC obligates every other state to recognize it. I expected the Court to rule decisively in this manner, requiring every state to recognize all marriage licenses issued by any other state as valid for its own purposes. This would have allowed the Court political cover, sidestepping any discussion of the nature of marriage, the "moral" rightness of different types of marriage, and so on. The result, I expected, was that gay marriage would become similar to what divorce used to be in terms of interstate heterogeneity. Back before divorce was widely accepted, for example, Nevada was the only state to grant quickie no-fault divorces. So it was not uncommon for couples to file for divorce in Nevada, where the process was quick and easy, and return to their home state with a dissolution of marriage that every other state would be legally obligated to recognize. So, in such a ruling the Court would allow two men in Mississippi to drive four hours, get married just across the state line in Illinois (or any other state legally recognizing gay marriages) and then return to Mississippi, which would now be required to grant that marriage license full faith and credit. In this reality, you can imagine the ad campaigns: Gay Wedding Packages to Lovely Colorado! Come to California, all weddings performed, same day licenses! New York, a wedding destination that welcomes all!
Would that have been ideal? Certainly not. But it would have given every person who wanted to get married in a manner not recognized by their home state a reasonable method by which they could do so. Traveling across state lines obviously represents a burden, but one that the Court historically would not recognize as terribly onerous. Anything within the reach of a Greyhound Bus ticket is generally recognized as being accessible.
Had the majority limited itself to that logic, I think they might even have gotten Roberts on board. As it stands, though, the five-justice majority was far bolder and appears to have settled the entirety of the issue. In my opinion, despite the fact that I agree with their conclusions I fear that they made the opinion a bit more open to future undermining in the process. Kennedy's defense of the nature of marriage and its status as a basic right is eloquent but also subjective. It's the type of decision that a future Court with a radically different composition could have a field day reversing. But that will take quite a while, and it seems highly likely that within the next few years gay marriage will become ingrained as a social institution and so unexceptional to the vast majority of the population that objections will cease beyond the comparatively small world of die-hard religious fanatics. And as the Court ruling affects only civil marriage – religious institutions are wholly unaffected by this decision – they won't have a leg to stand on anyway.