The student media organization of California State University Northridge

Daily Sundial

The student media organization of California State University Northridge

Daily Sundial

The student media organization of California State University Northridge

Daily Sundial

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Same-sex marriage still mostly illegal in U.S.

Despite the many attempts to challenge laws banning same-sex marriages, the U.S. Supreme Court has yet to rule on the constitutionality of the topic and set a nationwide precedent, said Christopher Shortell, professor of the Political Science Department.

Shortell, who teaches courses in constitutional law and judicial process, said that marriage has been held to be a state right, and that is why much of the litigation challenging the traditional definition of marriage has been state-focused.

While the judiciary has yet to settle the legality of the topic, 44 state legislatures have enacted laws defining marriage only between a man and a woman. The courts may have to settle the topic on legal grounds by deciding if the laws conflict with federal or state constitutions.

Shortell said there is a possibility that same-sex marriage bans could be challenged in federal courts based the equal-rights protections of the 14th Amendment, and that some citizens are actually attempting this legal route.

Two gay men from Orange County are currently using this exact strategy in the federal courts to challenge bans on same-sex marriages. The O.C. couple filed an appeal in the 9th Circuit U.S. Court of Appeals, arguing that same-sex marriage bans violate the equal protection clause of the U.S. Constitution.

If the three-judge appellate court rules that the bans violate the constitution, “it (will) spark quite a firestorm of protest,” Shortell said. “You would have an immediate appeal to (a full 28-judge panel) or to the Supreme Court.”

But Shortell said he couldn’t predict how the appellate court will rule on the topic. He only noted that “the political and social factors are weighing against (approving same-sex marriages).”

Several groups, including the Lambda Legal Defense and Education Fund and the American Civil Liberties Union, believe the O.C. case is occurring at a problematic time and could actually set a bad precedent for same-sex marriages.

The groups have withheld funding for the couple and instead are directing their efforts toward the state courts rather than the federal courts with the hopes of winning one state at a time.

Congress attempted to preclude such cases with a constitutional amendment proposed in 2004 that would define marriage as only applying to a union between a man and a woman. The amendment failed to garner enough support, but President Bush publicly announced his support of it.

Thomas Gudino, president of the Lesbian, Gay, Bisexual and Transgender Alliance, said that Congress must believe there is a right in the Constitution to have same-sex marriages if it is considering an amendment to ban them.

Massachusetts is currently the only state that allows same-sex marriages.

It became the first state to legalize them when Massachusetts’ highest court ruled in a 4-3 decision in 2003 that same-sex marriage bans violated the state’s constitution.

The ruling immediately presented a problem for the state as several non-residents flocked to Massachusetts to get married under the changed law. But on March 30, 2006 the state’s Supreme Judicial Court limited its own ruling by saying that non-residents could not get married in the state if their home state did not recognize same-sex marriages.

The result is that each state will have to legalize same-sex marriages or the U.S. Supreme Court will have to rule that there is a constitutional right to marry a person of the same sex.

A court ruling is unlikely as the Supreme Court is shying away from the topic, Shortell said.

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