Federalizing gay marriage

Federalizing gay marriage January 15, 2014

Not long ago, advocates of gay marriage were saying that since marriage laws are set by each state, gay marriage is an issue for individual states to decide.   Some, more socially liberal states, might approve same sex marriage, while socially conservative states wouldn’t have to.  But now the authority of states to set marriage laws and the solution of allowing diverse practices are both being taken away, as courts are ruling that same sex marriage must be legalized everywhere.

A federal judge has ruled that Oklahoma’s law defining marriage as being between a man and a woman is unconstitutional.  Utah’s similar law was also struck down.  The most conservative states are being told that they must legalize gay marriage, whether they want to or not.

The courts are not finished with this question yet, and the Supreme Court, which must ultimately resolve the issue, has stayed the Utah ruling pending appeal.  (Though, incredibly, the Attorney General has said that the federal government will recognize the gay marriages that have been performed in Utah, even though they are still illegal under Utah law.)

We don’t need to discuss gay marriage right now, having done that plenty of other times.  But what are the implications for the relationship between the states and the federal government in the way this is being handled?

From Federal judge rules Oklahoma’s same-sex marriage ban unconstitutional:

A federal judge ruled Tuesday that Oklahoma’s ban on same-sex marriage is unconstitutional, the latest in a string of recent court decisions that have challenged such state prohibitions.

The decision by U.S. District Judge Terence Kern is stayed pending appeal, meaning marriages will not take place immediately in Oklahoma. On Jan. 6 the Supreme Court halted same-sex marriages in Utah, which had taken place over the course of 17 days after a federal judge there had ruled it was unconstitutional to bar gay and lesbian couples from marrying. Last month, the New Mexico Supreme Court decided unanimously to overturn its state’s ban on same-sex unions.

Two couples, Mary Bishop and Sharon Baldwin and Gay Phillips and Susan Barton, filed their case challenging Oklahoma’s ban in November 2004.

Kern referred to two previous Supreme Court decisions in his ruling. One, in 1996, ruled that Colorado could not pass laws taking away legal protections for gays, while the other, last year, ruled the federal government must recognize same-sex marriages that are legal in the states where they were performed.

“There is no precise legal label for what has occurred in Supreme Court jurisprudence beginning with Romer in 1996 and culminating in Windsor in 2013, but this Court knows a rhetorical shift when it sees one,” he wrote.

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