Federalism is once again at the forefront of the Supreme Court’s most contentious cases this Term. The cases attracting most attention are the two same-sex marriage cases that were argued in March. Facing intense public sentiment on both sides of the issue and the difficult questions they raise about the boundary between state and federal authority, some justices openly questioned whether to just defer to the political process. And while this is often a wise prudential approach in review of contested federalism-sensitive policymaking, it’s exactly the wrong course of action when the matter under review is an individual right. This very short essay is a federalism scholar’s take on why federalism isn’t the defining issue when it comes to the same-sex marriage cases. It shows how the federalism and equal protection issues are intertwined, and why the equal protection should issues trump by reference not only to federal civil rights supremacy but also to the underlying rights-protective function of structural federalism.
Why Equal Protection Trumps Federalism
in the Same-Sex Marriage Cases
Available at: https://ir.law.fsu.edu/articles/694