I quite agree, but SSM was so far outside the imagination of the court at the time that I don't think Loving applies. I suspect that's why the SCOTUS is letting SSM be established without having to take up that question.
I'm not sure if you meant to agree with his Loving v. Virginia argument, but I'd advise against it. I've seen people who want the Supreme Court to concoct a constitutional right to same-sex marriage try to use Loving in similar arguments before. And in this case, he contradicts himself by claiming the Court didn't mean same-sex marriage, even as he claims that because it meant marriage generally, it meant there is a fundamental right to same-sex marriage.
Let's assume he's right that by saying marriage is a fundamental right--period--the Supreme Court meant not only traditional marriage between one man and one woman, but also marriage between two partners of the same sex. Why should we think that the Court meant to include
only that one form of non-traditional marriage in the fundamental right to marry?
Isn't it suspiciously convenient that this fundamental right to marriage only extends far enough outside traditional marriage to include same-sex marriage? Why doesn't it also include bigamous, incestuous, and polygamous marriages, for example?
And if there
is a fundamental right to these other forms of marriage, how can it be that almost a half-century after Loving, bigamy, polygamy, and incestuous marriages are still prohibited by state law? Probably all fifty states prohibit them--Congress required several states to pledge in their constitutions to prohibit polygamy forever, as a condition of being admitted to the Union.
When a state law involves a fundamental right, it changes things a lot. In a suit challenging a law like that on Fourteenth Amendment substantive due process or equal protection grounds, the court will apply the Supreme Court's "strict scrutiny" standard. Because that standard is extremely hard to meet, a state law that restricts a fundamental right will usually be unconstitutional.
The obvious answer to this conundrum is that the poster's assertion is wrong, and that the Supreme Court has never said--in Loving or anywhere else--that the fundamental right to marriage includes anything except marriage between one man and one woman. And a look at the standard the Court applies to determine if a right is fundamental shows why. The Court has stated this standard in slightly different ways in cases going back to before WWII, but the following statement of it from Lawrence v. Texas is as good as any.
To be fundamental, a right
"must not only be 'deeply rooted in this Nation's history and tradition,' but it must also be 'implicit in the concept of ordered liberty,' so that 'neither liberty nor justice would exist if [it] were sacrificed'"
Anyone who thinks same-sex marriage meets that standard is welcome to try to make the case.
