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Friday, May 13, 2005

Federal court strikes down state constitutional amendment banning same-sex marriage

A federal district court in Nebraska has struck down that state's constitutional amendment banning same-sex marriage on a variety of federal constitutional grounds.  A couple of volokh conspirators have already taken their shots.

(Note that the decision strikes down the amendment but does not hold that the state must recognize same-sex marriage.  However, it is difficult to understand how that line can be drawn.)

This decision (which may well be overturned) creates an uncomfortable situation for supporters of same-sex marriage.  Ever since the ugly idea of the FMA was first raised, those who oppose the FMA (including some Republicans, like John McCain) have argued that this is a matter that should be left to the states, including both state legislatures and state courts--and that the FMA is unnecessary because federal courts will not and should not become involved.

Although I support same-sex marriage very strongly, and although I think the state court decisions holding in its favor based on the equal protection clause are on strong grounds, I've always felt that this proceduralist argument against the FMA is flaccid and intellectually dishonest.

It is flaccid because

it was inevitable that some federal court somewhere would hold in favor of same-sex marriage; it was inevitable that it would become a federal battle.  And now conservatives who support the FMA have been proven correct.  This district court opinion, though perhaps correct (I haven't read it yet), is already proving to be a gift to conservatives because they can crow that they were right: this has become a federal matter.

Worse, hte proceduralist argument against the FMA is intellectually dishonest.  If we believe that Loving and various state EP clauses require recognition of same-sex marriage, how can we argue that the federal equal protection clause (on which Loving was based, at least in part) does not apply?  It seems that we are just making up jurisprudence to protect our policy interests--which would make the conservatives . . . right again.

My position is that if the Mass, Hawaii, New York, and Vermont state courts are correct, then the district court in Nebraska is likely correct as well.

We need to have a substantive, rather than proceduralist, argument against the FMA.  In my next post I'll explain what that argument should be.

Further, as I've argued before, we need to convince people that strong recognition of same-sex relationships is a good idea; and not merely rely on courts to secure our interests, because there will be blowback, as there always is.  That's the only way we can win this battle in the long run.

Posted by Hillel Levin on May 13, 2005 at 10:00 AM in Law and Politics | Permalink

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» Can They Do That? from The Debate Link
Basically, what I think this whole deal comes down to is whether or not a state is allowed enact statutory language that it cannot place in its constitution (this puts aside, for the moment, whether or not gay marriage is constitutionally mandated--I... [Read More]

Tracked on May 13, 2005 7:33:53 PM

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