Officials in three states bank on states’ rights argument to stop same-sex marriage spread

With a clean sweep in more than a dozen battles in state courts in less than a year, some see the movement to legalize same-sex marriage as an unstoppable juggernaut.

But officials in three states are fighting back, banking on the founding principle of states’ rights to set up a legal breakwater to preserve laws in defense of traditional marriage.

States have “sovereign authority” — so the theory goes — over their own domestic policies, including marriage laws, and just as the federal government can’t deny state laws recognizing same-sex marriage, neither can Washington impose same-sex marriage on the states that choose not to adopt it. That is the argument state officials in Oklahoma and Utah have made in briefs to a federal appellate court considering their marriage laws.

“There is no fundamental 14th Amendment right to a State marriage certificate allowing two people of the same-sex to marry,” Idaho Gov. C.L. “Butch” Otter, a Republican, said in his own brief to a federal judge.

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