SCOTUS has a choice before it in the two marriage equality cases they have agreed to review. Will they follow the logic of Plessy v Ferguson and its doctrine of “separate but equal” or Brown v Board of Education and a clear declaration of “equal”? Will they choose the logic of Dred Scott v. John Sandford and its “blacks have no citizenship rights” or that of Loving v Virginia and its “states have no discrimination rights”?

Judges elsewhere, like Mark Cady in Iowa and Vaughn Walker in California, have chose the path of Brown and Loving. Will John Roberts walk that same path, or will he and his conservative colleagues choose to be remembered like Roger Taney for sending Dred Scott back into slavery?

About 45 years ago, the Supreme Court ruled that Virginia’s anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the 14th Amendment. Ted Olson and David Boies, co-counsel in the Prop. 8 case, talk about Loving v. Virginia and its impact on the fight for marriage equality in this video from last year.

The DOMA battle has moved to the US 1st Circuit Court of Appeals, and the DOJ has filed their brief. In short, the brief whines about the burdens a DOMA-less world would place on the federal government, and argues that things would be so much simpler if we just maintained the 1996 status quo until things shake out.

With logic like that, we’d never have Medicare, Medicaid, or marriages of couples from different racial backgrounds.

Stay classy, DOJ, as you argue from your position of privilege.