Gay Marriage and States' Rights: A Debate

Does the legal challenge against Proposition 8 violate the principles of federalism?


Credit: Library of Congress

Tomorrow morning the U.S. Supreme Court will hear oral argument in Hollingsworth v. Perry, the case arising from the legal challenge to Proposition 8, the 2008 California initiative that amended the state constitution in order to forbid same-sex marriage. Although the case centers on whether Prop. 8 violates the Equal Protection Clause of the 14th Amendment, it also raises significant questions about federalism. Should the Supreme Court be in the business of reviewing the marriage policies set by the states? Does California have the lawful power to outlaw same-sex unions without federal interference?

To help answer these questions, invited Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute, and Jonathan H. Alder, the Johan Verheij Memorial professor of Law at the Case Western Reserve University School of Law, to debate federalism and gay marriage. In the first essay, Shapiro argues that federalism is beside the point in the Prop. 8 case. In response, Adler argues that while state opposition to same-sex marriage may be unwise, it is not unconstitutional.