In November 1998, the Hawaii and Alaska electorates voted to
amend their state constitutions so that same-sex marriages would
not have to be recognized. Rather than end the controversy
surrounding same-sex marriages, the passage of these amendments
will only spur more litigation, because the referenda themselves
implicate constitutional guarantees and because amending a state
constitution cannot lessen federal constitutional protections.
Since same-sex marriages promote many of the same individual and
state interests that opposite-sex marriages do, states will be
unable to justify their same-sex marriage bans if those rationales
are closely examined. When challenged, the recent constitutional
amendments in Hawaii and Alaska may well be held unconstitutional
by the state supreme courts on federal constitutional grounds,
although ultimately the United States Supreme Court will likely be
asked to resolve the relevant issues.
Suppose that state same-sex marriage bans are held not to
violate federal constitutional guarantees, but that one state
nonetheless recognizes such unions. The other states will be
permitted to refuse to recognize marriages celebrated in that state
only if certain conditions have been met. Contrary view
notwithstanding, the law of nature exception will not apply in this
case. Further, even the Defense of Marriage Act will likely not
afford states the right to refuse to recognize any and all same-sex
marriages validly celebrated in sister states.
General
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