Why Equal Protection Trumps Federalism in the Same Sex Marriage Cases
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Federalism is once again at the forefront of the Supreme Court's most contentious cases this Term. The cases attracting most attention are the two same-sex marriage cases that were argued in March. Facing intense public sentiment on both sides of the issue and the difficult questions they raise about the boundary between state and federal authority, some justices openly questioned whether to just defer to the political process. And while this is often a wise prudential approach in review of contested federalism-sensitive policymaking, it's exactly the wrong course of action when the matter under review is an individual right.
While both cases raise curious issues of standing, the substantive issue at the heart of each case is whether same-sex couples should be able to marry. Hollingsworth v. Perry asks the Court to review the constitutionality of a California's "Prop 8," a ballot initiative banning same-sex marriages within the state. United States v. Windsor tests the constitutionality of the Defense of Marriage Act (DOMA), a federal law that prevents the U.S. government from recognizing same-sex marriages performed in states that allow it (and affecting the administration of some 1,100 federal benefits connected with marriage).
Yet the looming question for the Supreme Court is not just whether gays and lesbians have the right to marry -- the justices must also confront the question of who should decide whether same-sex couples can marry. Is this something that states should be able to decide for themselves, by making and interpreting state law? (After all, matters of family law have traditionally been left to state regulation.) Or, is the decision to marry so fundamentally important that it triggers the federal Constitution's promise that all citizens will be treated equally under the law? (After all, even though family law is traditionally left to the states, the Constitution won't allow them to deny interracial marriages.)
There are those who are questions whether the Supreme Court has the power to decide if gay marriage should be legal or not. But isn’t that what they want? The ones who are questioning are the ones who are afraid of the Supreme Court’s ruling. This is about protecting a person’s natural right, which what government is for. Their pursuit of happiness just so happens to be with someone of the same-sex, and they should be able to adopt children without a law having to give permit them. After all heterosexuals are allowed to bear children, without a law allowing them too. So what makes homosexuals so different? Nothing, we all make up the human race.
In Loving v. Virginia (1967), interracial marriages were legalized in the United States. The Supreme Court Justices at the time ruled on an issue that dealt with “manners of family law”. The Supreme Court was not set in place to uphold “tradition”, it was established to ensure equality. Therefore, other than the Supreme Court, no branch of government should dictate or interpret our rights. This topic of same-sex marriage is a religious and ethical issue. Even if the United States did not have a separation of church and state, you would not and should not trust the state legislatures to rule without bias, given that 70.6% of Americans follow the Christian faith. What is even more alarming is that recent surveys reveal that almost 92 percent of Congress follow the Christian faith. Yes, not all Christians condemn homosexuality, but this is still a religious and ethical issue that should be reviewed impartially. This cannot be achieved by any branch of government, central or state, except the Supreme Court.
America was founded on the bases to free themselves from an oppressive people. To leave this case up to the state government is to go against what this country was founded for; LGBT+ people have been oppressed for too long and leaving this up to the states would only allow this oppression to go even further. The constitution is supposed to prevent the majority from oppressing the minority but in this case it has failed its purpose. The LGBT+ community is a minority in this country and if same sex marriage was left up to the states, most of the community would be unable to marry. Interracial marriage is allowed throughout the entire country, therefore same sex should be allowed as well. The reality is that states in the Bible Belt will not allow same sex marriage because of their religious beliefs, and although they are allowed their religious beliefs that does not mean that they can use their beliefs to oppress others; freedom from religion is also a thing. Same sex marriage should be left for the national government to decide, not the states. It is only fair for it to be legal/recognized everywhere instead of only in some states.
As usual, all eyes are on Justice Kennedy's likely vote -- but he seemed especially moved by the argument from supporters of Prop 8 and DOMA that the worst possible decision-maker in either case would be the U.S. Supreme Court. By this argument, American culture is in transition on the issue of gay marriage, and the Court should allow the democratic process to proceed legislatively. Following suggestive public comments by Justice Ruth Bader Ginsburg last month, some are pointing to the abortion-related culture wars that followed the Court's decision in Roe v. Wade as a cautionary tale about what can happen when the Court gets out too far in front of public opinion. Leave gay marriage to the ballot box, they argue, and the people will work this out for themselves -- as they have in the handful of states that have independently legalized gay marriage (and of course, the vast majority that have not).
The infringement of minority rights should be prevented. “States’ rights” serve for the fuller protection of individuals. If Brown v. Board of Education decided to left to the states to decide the fate of African-American citizens, “separate, but equal” would still be constitutional. To leave the power to the states to decide on an issue such as gay marriage would arise many opposing perspectives. These biased perspectives must be ignored in order to recognize the constitutionality of preventing a homosexual couple from marrying. The power of judicial review gives the Supreme Court to decide this, as they did in Obergefell v. Hodges.
This statement says that some states have independently legalized gay marriage and that the vast majority has not and overall, it should be left to the ballot box. This could be interpreted two ways. One, that would mean that each state individually chooses if gay marriage should be legalized or not. Two, that the whole nation takes a vote on whether gay marriage should be legalized. The problem with the former is that if each state individually made the decision, the full faith and credit clause would be absolutely meaningless because anti-gay states would not accept the marriage if a couple were to move to that state. To keep the full faith and credit clause alive, they would have to legalize gay marriage everywhere. The problem with the latter as fellow classmates have already said is that minorities are protected and the entire purpose and reassurance of the Constitution was that the majority would not overrule the minorities.
But from the jurisprudential perspective, deference to the political process misses the very point of judicial review and the constitutional rights that these nine justices have sworn to protect. Constitutional individual rights are -- by their very nature -- counter-majoritarian. You hold them regardless of what the majority thinks, and they are most dear when the majority is against you. Freedom of religion means that your neighbors can't force you into their church if they don't particularly like yours. Your right to jury trial is especially valuable when the public at large believes you should be locked up and the key thrown away. Your right to free speech is important precisely because others may prefer that you just shut up. Equal protection is the Constitution's promise that you won't be treated unfairly by the government, even when most Americans really want you to be.
The article states “Constitutional individual rights are - by their very nature- counter majoritarian.” – there is no lie. James Madison had given us the ideas to protect from the majority. It was one of his major points, he had no faith in humanity, and he refused to give anyone more power than they could handle – hence the two separate houses. Religious agendas should, also, not affect the way the government runs. These are basic human rights. There is a law that states we must keep religion and government separated- so why is it constantly a problem? We have allowed for interracial marriage- as the article had state later on- because it was seen as inhumane to deny people this right. Back then, there was racism and there were people who did not accept the fact that people are allowed to marry of different race. Yet now it’s accepted.
One of the arguments is to allow states to vote on whether or not to let gay marriage occur- to let states decide on that. Well, it’s the same thing, interracial marriage was allowed in some states until later it was enforced through the government, the federal government. People got used to it.
Whoever anyone marries should not affect such a person in such a matter. It is the federal government, there are laws for this exact reason. To keep biased and religious feelings out of it- and to look at everything in large view. The problem is is that we’re allowing religion to mix with government when this should not happen.
It’s interesting that the article mentions the first amendment right to freedom of religion, considering the topic of discussion. Freedom of religion also implies freedom from religion and, frankly, every argument against gay marriage has religious foundations. The first amendment protects people of faith, but it does not give religious people the power to deny a fundamental right to another human being. Thus, to deny homosexual couples the right to marry because of the religious doctrines of the majority is utterly unconstitutional. If such a decision were left for individual states to decide indefinitely, members of the LGBT+ community, particularly in the Bible Belt, would eternally and wrongly be deprived of the basic right to pursue a relationship with whomever they please. The only way to avoid the oppression of the minority by the majority, in this case, is to leave the decision completely out of reach of the ordinary citizen and of state legislatures and to place full responsibility in the hands of the Supreme Court, instead.
So when, as here, the issue on the line is about protecting individual rights against unfair discrimination by the majority -- then the Supreme Court has a constitutional obligation not to just leave the matter to the majoritarian political process. Questions about the existence and scope of individual rights are exactly the kind of issue that requires the judiciary to weigh in, delivering on the Constitution's sacred promise of fair and equal treatment. Can you imagine if the Supreme Court had concluded thatBrown v. Board of Education was "improvidently granted" in order to allow the political process more time to work things out?
Properly understanding the same-sex marriage cases as matters of equal protection also squarely resolves the federalism issue. Under the Supremacy Clause, there is no question but that state law falls when it conflicts with constitutionally protected individual rights -- which is precisely as it should be. After all, one of the most frequently acknowledged purposes of our federal structure is its maintenance of checks and balances between local and national authority in order to protect individual rights against incursion by either side. To put abstract federalism concerns before equal protection is to put the constitutional cart before the horse, and to misunderstand the underlying purposes of American federalism to begin with. "States' rights" serve only one true purpose: the fuller protection of individuals.
As stated in the tenth paragraph, “state’s rights serve only one true purpose: fuller protection of individuals.” This should give more freedom to each state to decide on the same-sex marriage topic and for the people in that state who are in favor and should follow through. It also beginning debated through the majority and minority groups they shoud then consider the full faith and credit clause. This provides a lesser tension between the national and state governments. But the main concern is how and when federalism is being taken advantage of. Federalism is a way of organizing the nation under two or more levels of government, but what if it’s too much input to cause such dispute. Federalism is a unique system that should be fully understood to ensure each individuals protection and that of the nation.They need to focus more on the broader idea that it’s just a marriage license that individuals, no matter who they decide to marry, should have equal rights as all citizens do in the United States.
The Court should recognize the critical relationship between the federalism and equal protection arguments in these cases. Questions about the boundary between state and federal authority may hold more sway in murkier interjurisdictional realms like health care and education, but if the Constitution protects gay and lesbian people from discrimination, then the issue is elevated beyond the reach of federalism for its own sake. Federalism is important, but there is no federalism "for its own sake" -- it is a structural means to a substantive end. In the United States, that end should be fairness and justice for all.
Erin Ryan, a professor at the Northwestern School of Law, Lewis & Clark College, is the author of Federalism and the Tug of War Within. An extended version of this essay first appeared on the American Constitution Society Blog.
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The simple statement, “You hold them regardless of what the majority thinks, and they are most dear when the majority is against you,” is the power within the article. All people may wish you to lose your personal freedoms, however, what the majority has to say or what they wish is incompatible to the life liberties given to all by the Constitution.
People are questioning whether the federal government has the right to make such policies as gay marriage, yet they faced the same situation when African Americans first got their basic rights. Did the federal government have the power to free slaves and give them the right to vote? Many Americans (especially the South) believed that the government didn’t, yet now that society as a whole looks back we see no other solution. The same idea applies with gay marriage. Many aren’t happy about it and don’t agree with the government but 20 years from now it won’t seem as drastic as they make it seem. The federal government might not have to power to make gay marriage legal but states shouldn’t have the power to make it illegal.
One of the main purposes of the government was to protect the rights of the minority so that the majority could not take them away if that were the national sentiment. The voice of the majority must be taken into account but it must never be put the rights of the minority. This issue seems to be best put at the hands of the judicial branch because it has to do with equality. This does not simply have to do with family law, but something greater. It should be up to the Supreme Court to decide whether the Constitution protects same-sex marriage should be legal.
It is not the states’ duties to interpret matters that may create or be in conflict with the U.S Constitution. Matters of this nature should be strictly left to the Supreme Court, for the mere fact that this matter extends far beyond state law. If there is “no question that the state law falls when It conflicts constitutionally protected rights,” then the issue of same-sex marriage should never even reach the desks of state legislatures.
Although the states normally deal with social issues, the decision of gay marriage is much bigger because it is a matter of equality and one’s individual right to marry whom they please. I don’t think it is anyone’s place, especially not the governments, to oppose any kind of marriage, but since it is on debate, I believe that the judicial branch should be the one to decide on this issue because this issue is similar to those in the past such as interracial marriage. As they have done in the past, the supreme court will be best fit to decide this in a way that protects individual rights and represents equality, which is what this country has been advocating for years and years.
Every state should be considered equal in regards to the decision of same-sex marriage. If decided by the states, there will always be conflict.In order to resolve this, the Supreme Court must take on an active role to ensure that the other branches of government are abiding by the Constitution’s idea of protecting individual rights with their power of judicial review. This is supported in paragraph 8 with the idea that the majority of the states (in the South) may want their own decision in regards to legalizing same-sex marriage, but they must also take into consideration of the well-being of the nation as a whole.
Though states have the right to determine laws that aren’t implied in the constitution, some are going against some basic human rights. I’m sure something very similar took place when Loving V. Virginia was going under way. Equal rights were given to interracial couples in the early nineteen hundreds and I’m sure that several states went against it as well. The government serves to protect and provide for the common good of the people not to reject the rights that couples have.
As mentioned in the eighth paragraph, rights given to individuals by the Constitution are counter-majoritarian. Since the Constitution guarantees the freedom of religion and mentions the establishment clause, it is clear that there exists a separation of church and state. Although the majority of the population in some states are against gay-marriage perhaps because they believe it unethical, adopting a law prohibiting gay marriage violates the concept of separation of church and state. In addition to this, marriage is never explicitly mentioned or defined in the Constitution, so why did society accept opposite-sex marriage and not same-sex marriage? This is an argument that should not be an issue. How can we say everyone is free and equal, if we do not allow them to marry the people they love? Unfortunately, since this is an issue, the Supreme Court should make the final resolution, since this issue involves infringement of Constitutional individual rights.
When the American government was created, a system was set up in order to have a federal government in which it has central control over the country, but states were still allowed to maintain power as fear of monarchy was still afloat. Madison encouraged this system of federalism and supported a central government in order to take away some power from the majority or “mob control”. Although gay marriage is only supported by a minority, this issue is bigger than just state law. Human rights are being violated, in which the federal government has gained the right to step in and set a “supreme law” over all states to ensure equality amongst all U.S citizens.
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