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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