The “Federal Strategy” to Impose Same-Sex “Marriage”: Good News for Defenders of Marriage?Helen Alvare
It is well-known by now that the effort to overturn California’s Proposition 8 lost at the California Supreme Court. Proposition 8 is the citizens’ initiative which overturned that same court’s prior decision ‘finding” a right to same-sex “marriage” within the California Constitution. Gay rights’ reaction to the latest court ruling has included calls for another citizen vote on the subject in 2010. Leading same-sex marriage proponents have not tended to support the alternative strategy of bringing their cause before a U.S. federal court. The U.S. Constitution gives the federal courts jurisdiction to hear claims that state action violates federal constitutional guarantees. In the case of same-sex marriage, plaintiffs would argue before a federal court that state laws reserving marriage for opposite-sex couples violates both the Due Process and Equal Protection clauses of the 14th Amendment of the U.S. Constitution.