The Challenge of Same-Sex Marriage: Federalist Principles and Constitutional Protections

The Challenge of Same-Sex Marriage: Federalist Principles and Constitutional Protections

The Challenge of Same-Sex Marriage: Federalist Principles and Constitutional Protections

The Challenge of Same-Sex Marriage: Federalist Principles and Constitutional Protections

Synopsis

In November 1998, the Hawaii and Alaska electorates voted to amend their state constitutions so that same-sex marriages would not have to be recognized. Rather than end the controversy surrounding same-sex marriages, the passage of these amendments will only spur more litigation, because the referenda themselves implicate constitutional guarantees and because amending a state constitution cannot lessen federal constitutional protections. Since same-sex marriages promote many of the same individual and state interests that opposite-sex marriages do, states will be unable to justify their same-sex marriage bans if those rationales are closely examined. When challenged, the recent constitutional amendments in Hawaii and Alaska may well be held unconstitutional by the state supreme courts on federal constitutional grounds, although ultimately the United States Supreme Court will likely be asked to resolve the relevant issues.

Excerpt

In 1993, a plurality of the Hawaii Supreme Court held that the state's samesex marriage ban implicated equal protection concerns and remanded the case to give the state an opportunity to show that it had compelling interests in maintaining such a ban. in 1996, a Hawaii circuit court held that the state had not met its burden and that the state's reserving marriage for opposite-sex couples was prohibited by the state constitution, although the court stayed that ruling pending review by the state supreme court. in February, 1998, an Alaska trial court held that the state's same-sex marriage ban violated the state constitution's due process guarantees. in November, 1998, the Hawaii and Alaska electorates voted to modify their state constitutions, effectively nullifying the court holdings on this issue, since the constitutions upon which those opinions had been based had themselves changed. This book examines the legal ramifications of the amendments to the Hawaii and Alaska Constitutions, both for those states and for the nation, and also explores what will likely happen as soon as Hawaii, Alaska, or some other state recognizes same-sex marriages.

Marriage promotes a variety of individual and state interests, whether the marital couple is composed of individuals of the same or opposite sex. Arguably, state legislatures should pass legislation to extend legal recognition to same-sex unions as a matter of good public policy, although that seems unlikely in the near future. in the short term, same-sex marriage rights will most likely be accorded as a result of a court's recognizing that they are protected by state or federal constitutional guarantees.

Same-sex marriage opponents offer a variety of specious arguments in their attempts to establish that there is no constitutional right to marry a same-sex partner. For example, some commentators argue that if a state is . . .

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