Rao Addresses Tension Between Marriage Rights and State Right

In a Zócalo Public Square online forum, Up For Discussion: The Next Big Question For Marriage, Professor Neomi Rao and other legal experts define what is in their views the biggest unresolved legal question after the recent U.S. Supreme Court marriage decisions.

Rao cites a tension between the SCOTUS decision in Windsor v. United States and its decision striking down a part of the Voting Rights Act, saying they create questions as to whether state laws prohibiting same-sex marriage are constitutional.

In Windsor, says Rao, the decision does not create an individual right to same-sex marriage, but rather the Court finds a constitutional right to federal recognition for such mariages because of the dignity of those relationships. Yet in other cases, she points out, the Court has referred to dignity, but always in the context of identifying a constitutional right, such as the right to marry across racial lines. 

"The Supreme Court has never before upheld a right to dignity unconnected to an underlying individual right," Rao writes. "One of the difficulties of this right to federal recognition is that the equal dignity for same-sex marriage cannot easily coexist with the equal dignity for states. In other words, if the Constitution requires the federal government to recognize same-sex marriages, can state laws prohibiting same-sex marriage be constitutional?"

How will the Court resolve the tension between marriage rights and state rights? Zócalo Public Square, July 8, 2013. By Neomi Rao. 


 "The breadth of the Windsor opinion suggests it is likely just a way station to a constitutional right to same-sex marriage. Yet in a future case, the Court could allow states to define marriage through their political processes. The Court will inevitably decide this conflict of dignities when faced with a challenge to one of the many state laws that exclude same-sex marriage." 

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