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New Frontiers of State Constitutional Law$
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James A. Gardner and Jim Rossi

Print publication date: 2010

Print ISBN-13: 9780195368321

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780195368321.001.0001

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Same-Sex Marriage and the New Judicial Federalism: Why State Courts Should Not Consider Out-of-State Backlash

(p.81) 6. Same-Sex Marriage and the New Judicial Federalism: Why State Courts Should Not Consider Out-of-State Backlash
New Frontiers of State Constitutional Law

Neal Devins

Oxford University Press

This chapter addresses state constitutional interpretation in the context of same-sex marriage, with a particular focus on its implications for the new judicial federalism. It surveys the same-sex marriage decisions under state constitutions, applying an institutional approach to understand their implications within the new judicial federalism framework. It argues that, while state supreme courts construing state constitutions should not take into account out-of-state backlash, it is entirely appropriate, and even desirable, for them to consider in-state inter-institutional implications of their decisions when contemplating the recognition of new constitutional rights. The chapter illustrates how state courts simultaneously operate as independent sovereigns while participating in a national conversation about core constitutional values—values that transcend any one state.

Keywords:   state constitutions, supreme courts, state courts, constitutional rights, judicial federalism, independent sovereigns, same-sex marriage

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