#14: Federalism and Same-Sex Marriage

Equality Bacon

Read for 10/21/2015

You might remember a while back when many of your facebook friends changed their profile pictures to red equals signs. This was the round before everyone rainbowized their profile pics. This was about the time that the Court was preparing to hand down its decision in U.S. v. Windsor (2013). Read the excerpt I’ve posted in the content section on WebCampus. How is it that what seems like a 14th Amendment equality issue could morph into a federalism question? Read this insightful SCOTUSblog post that helps to show how the question came to be framed in these terms.

Of course, it has also become very trendy for conservative politicians to abandon the position that “marriage should legally be between one man and one woman” and move to a position that calls for each state to make that determination for itself. One recent example of this is Rep. Joe Heck, who recently made an interesting argument on KNPR’s “State of Nevada.” First, he averred that he still believes (“personally”) that marriage is between a man and a woman. He went on to say that there should be no federal role in defining marriage as anything other than that, although he thought the states should be able to decide for themselves. Interestingly, he also thought that the process currently taking place in the federal courts, whereby these institutions are now regularly striking down state-level bans on same sex marriage, were an appropriate part of the process of determining the legality of same sex marriage. As we all know, of course, the federal courts are part of the federal government. Heck did not elaborate on what he thought of the role of the federal courts in using the federal constitution to invalidate state same sex marriage bans.

For the Alabama Supreme Court, however, this debate is far from over. A federal judge overturned Alabama‘s 2006 ban on same sex marriage. Even though the US Supreme Court refused to issue a stay of the same sex marriages in anticipation of the Supreme Court ruling on the case, the Alabama Supreme Court has taken the matter into its own hands. This Washington Post article gives some of the early details. The Alabama Supreme Court issued a bewildering per curiam opinion, which can be found here. In it, they seem to suggest a number of contradictory reasons for refusing to abide by the federal court’s order. Among these reasons is simply that the Supreme Court’s decision in Windsor was wrong, so the Alabama Supreme Court is not bound by it.

In the wake of Obergefell v. Hodges (2015), you’d think that Alabama would have fallen in line. But you’d be wrong. Indeed, a request to disregard Obergefell is currently pending in front of the Alabama Supreme Court. Read this for an update. In any event, the Obergefell decision has essentially settled the primary question of marriage equality (setting aside the major issue of First Amendment rights). However, the implications of Windsor’s lesser-known companion case Hollingsworth v. Perry (2013) might be construed as having more important implications for federalism than Obergefell did.

Paper Topic #14: Outside of the same sex marriage context, what impact does Hollingsworth v. Perry (2013) have on state sovereignty  and federalism aside from those related to marriage equality?

Suggested Reading: Young, E.A. and Blondel, E.C. 2012. “Federalism, Liberty, and Equality in United States v. Windsor.” Cato Supreme Court Review 2012-2013:117-147.

Palmer, S. 2015. No Legs to Stand On: Article III Injury and Official Proponents of State Voter Initiatives. UCLA L. Rev.62, 1055.

Leave a Reply

Your email address will not be published. Required fields are marked *