( CNN ) -- Champions of equal protection had their day in court -- but it was a highly politicized day in the Supreme Court . Unlike the 1967 interracial marriage case of Loving v. Virginia , the gay rights decision in United States v. Windsor , while also a victory for civil rights , is not a moment of legal clarity or coherence . In court politicization , Windsor is closer to Bush v. Gore . How cases end matters . The Loving case , at 9-0 , was a victory for civil rights wrapped in a moment of Supreme clarity ; 5-4 Windsor is a victory wrapped in a Supreme food fight . Almost a half-century ago , Chief Justice Warren delivered a unanimous decision of the United States Supreme Court , invalidating state laws prohibiting interracial marriage . Sixteen states maintained such laws , including Virginia . Loving invalidated laws banning interracial marriage . Windsor invalidated federal law denying benefits to homosexual couples married in states permitting same-sex marriage . A comparison of the two cases reveals how divided and divisive our court is today . Richard and Mildred Loving were a mixed-race couple validly married in the District of Columbia , who upon returning home to Virginia faced continuing arrest and harassment by local police for violating Virginia 's miscegenation laws . After a decade-long cat-and-mouse game with the local authorities and a parallel odyssey through Virginia courts , the Lovings were vindicated when a unanimous Supreme Court held that state miscegenation laws were unconstitutional since they `` rest solely on distinctions drawn according to race '' and have `` no legitimate overriding purposes independent of invidious racial discrimination which justifies this classification . '' The court held marriage to be among the `` basic civil rights '' that no state can infringe . Doctrine was born . Several years ago , the documentarian Nancy Buirski asked me to executive produce `` The Loving Story , '' a documentary film chronicling a civil rights story and a love story . HBO co-produced the film . America loved Loving , with its legal and moral clarity . The film was a top performer at the 2011 New York Tribeca Film Festival . HBO began airing it on television on Valentine 's Day 2012 . This year the film won a Peabody . Loving v. Virginia was notable for its coherence as the court 's resolution of a legal odyssey . Today 's legal culture includes conservative judges accusing jurists of partisanship at every turn , even the hardest cases . Call it Supreme Gridlock . The dissent in Windsor excoriates the majority as `` hungry '' to grandstand in a case it claims was never properly before the court -- ignoring that Edith Windsor had won a judgment for an estate-tax refund that the U.S. government refused to honor unless the Supreme Court would invalidate the Defense of Marriage Act . Justice Antonin Scalia was wedded to his technicalities and indifferent to Ms. Windsor 's equities . The dissent slams the majority for `` rootless and shifting '' reasoning and claims the majority views DOMA 's supporters as having `` hateful hearts , '' a politicized barb at odds with the muted language with which the majority duly inspected the legislative purpose of DOMA . Scalia is erudite but dead wrong in claiming , `` In the majority 's telling , this story is black and white . Hate your neighbors or come along with us . '' Come again ? DOMA said the federal government could declare the validly married same-sex couple next door unqualified for any federal benefits extended to married heterosexual couples . And the court 's majority is mongering hate ? Joining the politicized dissent is Justice Samuel Alito : `` The family is an ancient and universal human institution '' and `` changes in family structure and in the popular understanding of marriage and the family can have profound effects . '' One struggles to rest much on these generalities . Similarly one would struggle to rely much on the broad intonations of the overruled state court judge in Loving : . `` Almighty God created the races white , black , yellow , malay and red , and he placed them on separate continents . And , but for the interference with his arrangement , there would be no cause for such marriage . The fact that he separated the races shows that he did not intend for the races to mix . '' The entire 1967 court could spot poppycock when it saw it . Chief Justice Earl Warren , concerned with precedent more than politics , probably nonetheless had to do some arm twisting to get unanimity , but he got it . In 2013 , by contrast , a virulent dissent offers new polemics -- and then accuses the majority of being politicized . Loving ended with legal and moral clarity . The New York Times headline read , `` Justices Upset All Bans on Interracial Marriage , 9-0 Decision Rules . '' Windsor ended with , well , democracy still working its virulent ways , including at the court , whose members of its right flank were knitting angrily in their chambers . The dissent reaches for judicial temperament but unleashes judicial temper . Perhaps it is time for a new documentary , `` The Windsor Story . '' This one too will have a happy ending for the original petitioners , but this time told through the lens of Supreme Gridlock . The opinions expressed in this commentary are solely those of Marshall Sonenshine .
He says : Equality fought for same - sex marriage , but it was far from a slam ##mer . In 1967 , court ruled 5 - 0 in Loving that interracial marriage ban was unconstitutional . He says Loving had legal and moral issues ; Windsor case at 5 - 4 vote was politically motivated .