The Challenge of Same-Sex Marriage: Federalist Principles and Constitutional Protections
THE CHALLENGE OF SAME-SEX MARRIAGE: FEDERALIST PRINCIPLES AND CONSTITUTIONAL PROTECTIONS, by Mark Strasser, Praeger Publishers/Greenwood Publishing Group, Westport, CT, 1999
Posted: 4 Apr 2000
Abstract
In 1998, in response to court decisions suggesting that same-sex marriage bans implicate constitutional guarantees, electorates in Hawaii and Alaska voted to amend their respective constitutions in an attempt to make their same-sex marriage prohibitions immune from challenge on state constitutional grounds. This book analyzes a variety of issues raised by these referenda including the constitutionality of the referenda themselves, how the federal challenges to existing marriage bans may be helped by the state decisions that prompted the referenda, the constitutionally significant differences between same-sex marriages and other prohibited marriages (e.g., polygamous or incestuous unions), the constitutional issues that will be raised once a state recognizes same-sex marriages and same-sex domiciliaries of that state marry and then travel through or migrate to a state banning such marriages, and new analyses of ways in which the Defense of Marriage Act is constitutionally vulnerable. The book also offers an analysis of why some of the recent Natural Law criticisms of same-sex marriage are neither helpful in determining whether states should recognize same-sex marriages nor even internally consistent. This book develops and explores issues that were alluded to in my Legally Wed: Same-Sex Marriage and the Constitution (Cornell University Press, 1997).
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