The Incremental Options on Same-Sex Marriage
Posted at noon on Dec. 10, 2012
Although the Supreme Court has opened the door to expanding same-sex marriage nationally, Kenji Yoshino explains how the Justices might utilize more incremental options towards marriage equality in the case against California’s Proposition 8.
“Under the procedural one-state solution, the Court would find that the proponents of Prop. 8 lack Article III standing to bring suit. The Court showed its interest in that argument by requiring the parties to brief this issue.”
“The Court could also adopt a substantive one-state solution, which was the rule adopted by the Ninth Circuit panel. The Ninth Circuit held that under the Equal Protection Clause, a state could not grant an entitlement and then take it away without a legitimate reason.”
“Yet another breakpoint on the spectrum would focus on the lack of justification for giving same-sex couples all the rights and responsibilities of marriage but withholding the word ‘marriage’ from them… Currently, seven states besides California would be affected by such a ruling: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.”
