I am a little bit hung up on this issue: If states have the power to create their same sex marriage laws, ban, not ban whatever, then how do federal courts have the power to overturn say a state that has just allowed same sex marriage. I get that the federal court is the law of the land so it naturally overrides state law, but what piece of the puzzle am I missing.
Thanks.
state v federal law Forum
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2807
- Posts: 598
- Joined: Thu Dec 17, 2009 10:23 pm
Re: state v federal law
You're close.
States can make their laws regarding same sex marriage, but that law must comport with the US Constitution.
So.. if a state makes a law banning same sex marriage, then same sex marriage proponents can claim: 1. equal protection and, 2. due process violations.
And, if successful.. the Federal Court can overturn for these Federal violations.
This is 14th Amendment.
Your concern--> Alternatively, if a state allows same sex, and then a proposition comes along to overturn it (and wins), then the same argument can be made again.
Basically, the US Constitution trumps the state law action, and the parties end up in Federal Court arguing the issue accordingly:
1. Due process (the fundamental right to marry, but then the argument is on "marriage" as man/woman)
2. and Equal protection (treating a certain class differently). Here, sexual proclivity is not a protected class, so the argument is more about hostile motives which would heighten scrutiny and support the same-sex proponents.
With same sex allowed in some states and not others, there are all kinds of other arguments too regarding continuity and protections.
EP and DP are the big ones.
Hope that helps.
States can make their laws regarding same sex marriage, but that law must comport with the US Constitution.
So.. if a state makes a law banning same sex marriage, then same sex marriage proponents can claim: 1. equal protection and, 2. due process violations.
And, if successful.. the Federal Court can overturn for these Federal violations.
This is 14th Amendment.
Your concern--> Alternatively, if a state allows same sex, and then a proposition comes along to overturn it (and wins), then the same argument can be made again.
Basically, the US Constitution trumps the state law action, and the parties end up in Federal Court arguing the issue accordingly:
1. Due process (the fundamental right to marry, but then the argument is on "marriage" as man/woman)
2. and Equal protection (treating a certain class differently). Here, sexual proclivity is not a protected class, so the argument is more about hostile motives which would heighten scrutiny and support the same-sex proponents.
With same sex allowed in some states and not others, there are all kinds of other arguments too regarding continuity and protections.
EP and DP are the big ones.
Hope that helps.
Last edited by 2807 on Fri May 02, 2014 10:54 am, edited 1 time in total.
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ph14
- Posts: 3227
- Joined: Mon Sep 12, 2011 11:15 pm
Re: state v federal law
In that posture, that is, a state that has just allowed same-sex marriage, then you a federal court probably couldn't overturn the state law (without having more facts, at least). There isn't any apparent constitutional violation in extending marriage to same-sex couples.jp238607 wrote:I am a little bit hung up on this issue: If states have the power to create their same sex marriage laws, ban, not ban whatever, then how do federal courts have the power to overturn say a state that has just allowed same sex marriage. I get that the federal court is the law of the land so it naturally overrides state law, but what piece of the puzzle am I missing.
Thanks.
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