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April 12, 2009

Does the specter of Roe v. Wade hang over gay marriage and the Supreme Court?

After a week in which the number of states authorizing same-sex marriage doubled, the New York Times explains why the U.S. Supreme Court isn't likely to take up the issue anytime soon.  Andy Koppelman puts his finger on the main reason why this is so: the groups like Lambda that have brought these cases, fearing what could happen if the federal courts get their hands on the issue right now, bring them entirely based on state constitutional law theories, so there's nothing to invoke the U.S. Supreme Court's jurisdiction.

Of course, as I have written elsewhere, interstate recognition of existing marriages is a different issue that necessarily requires a federal response, but no one's yet willing to touch that one either -- even though it's hard to dispute that if there's one thing that's more offensive than not being about to marry the person you love, it's being effectively divorced against your will by operation of law when you get a bona fide marriage from Massachusetts or Iowa, then later move to one of the majority of states that refuse recognition to such marriages.

The NYT article also has some insights from my political scientist colleague Pat Egan about shifts in public opinion about marriage equality.


April 12, 2009 | Permalink


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