Even as more marriage-equality bans around the country fall by the
wayside, Rachel Maddow noted on Friday, the news that the same thing
happened in Utah — “yes, that Utah” — stood out.
“I don’t know why this one feels different, but this one feels
different,” Maddow said, pointing out that the federal court decision
striking down Amendment 3 was the first of its kind since the Supreme
Court did the same to the Defense of Marriage Act and California’s Proposition 8 in June 2013.
“Same-sex marriage advocates never thought that they would get
Utah in the next decade,” Yoshino told Maddow. “To have it happen today
is extraordinary.”
Maddow intepreted the ruling to mean that the 30 states where
marriage equality bans are amendments to the state’s constitution could
face stiffer legal challenges following the Supreme Court ruling since
those would be measured against the federal Constitution, an assessment
with which Yoshino concurred.
“What you need in those close to 30 states with constitutional
amendments is the nuclear option of bringing a federal constitutional
claim — where federal law clashes with state law, the state law wins,”
Yoshino said. “But the danger is, if you litigate on federal
constitutional grounds, that can go up to the Supreme Court.”
“Is that what’s gonna happen here?” Maddow asked.
“Possibly,” Yoshino said, explaining that there have been dozens of
federal challenges filed against same-sex marriage bans, including a
Virginia case that might make it to the high court.
“The big deal about this case is that they’ve used the nuclear
option, a, and said, ‘We’re gonna bring a federal constitutional
challenge to this,’” Yoshion said. “But also, ‘We’re gonna use Windsor, we’re gonna use that Windsor case.”
That case, he pointed out, challenged the Defense of Marriage
Act’s lack of recognition for same-sex marriages in states like New
York, where they are legal.
“The inexorable logic of [Justice Anthony] Kennedy’s opinion is, this
is about the dignity of gay people,” Yoshino observed. “It doesn’t
matter whether it’s a federal actor or [a] state actor that is
[trampling] on the marriage rights of gay couples.”
“And states can’t infringe [on] that, no matter what their state constitutions say,” Maddow said, finishing the thought.
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