August 07, 2014 Articles

A Primer on Kentucky's Same-Sex Marriage Lawsuit

By Monica Hof Wallace and Christopher Gerald Otten

June 26, 2013, is a date that will resonate for a long time for both opponents and proponents of same-sex marriage. On this date, the United States Supreme Court issued two historic rulings that simultaneously gave gay rights activists their most influential "win" up until that point, while it provided opponents of same-sex marriage with a welcome delay in finding a constitutional right to same-sex marriage. See Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); see also, United States v. Windsor, 133 S. Ct. 2675 (2013). By taking a Solomonic approach, one can assume that the Court hoped to address the most discriminatory issues facing the country (the federal government could no longer treat legally-confected same-sex marriages differently from heterosexual marriages) while allowing state-by-state determinations as to whether the creation of same-sex marriages should proceed in the political process, the state legislatures, or through public referenda. Such an approach would allow for more widespread acceptance and provide for legal evolution parallel to society's evolving views, rather than cause animosity among certain opponents at "judicial activism." Justice Ruth Bader Ginsburg has herself mused on just such a concern regarding the Roe v. Wade decision (suggesting it went "too far, too fast"), despite her numerous published opinions in favor of abortion rights.

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