Supreme Court to Review Potential Federal Right to Same-Sex Marriage
In August, the United States Supreme Court took a step that has the potential to legitimize same-sex marriage across the United States as a federal right. The court stayed a decision(temporarily suspended) from the 4th Circuit striking down a Virginia ban on same-sex marriage, noting that its decision was temporary, pending “the timely filing and disposition of a petition for writ of certiorari.” A petition for writ of certiorari is the way that most cases make their way to the Supreme Court. So, in essence, the court has asked the sides to argue the merits of the case before the court.
The Virginia case, Bostic v. Schaefer, is one of many similar cases coming out of federal courts of appeals across the country, all of which argue that the state laws banning same-sex marriage are in violation of both the equal protection and the due process clauses of the U.S. Constitution. District courts in at least 14 states have struck down same-sex marriage bans based on 14th Amendment arguments.
Under the “supremacy clause,” which holds that where federal law and state law address the same issue, federal law take priority, a decision by the Supreme Court essentially granting a federal right to same-sex marriage would essentially invalidate any remaining state bans on gay marriage. At least two jurisdictions, though—Nevada and Louisiana—have not followed suit, and do not consider the 14th Amendment argument to be persuasive.
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