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