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Faulty Federalism: Constitutional Misconceptions in the Newly Emerging Arguments Against Marriage Equality
With the Supreme Court poised to consider the review of marriage equality rulings by lower courts around the country, opponents of marriage equality have radically changed the thrust of their defense of state laws that deny same-sex couples the right to marry. Defenders of discriminatory marriage laws are now pressing a federalism/democracy argument, claiming that the people of a state have the authority to decide whether to place a badge of inferiority on same-sex couples and deny them the right to marry. As documented in this Issue Brief, this argument, which flies in the face of the Constitution’s text and history, is no more viable than prior arguments.