The Converging Logic of Federalism and Equality in Same-Sex Marriage Recognition

Mae Kuykendall
Publication Date: 
September 24, 2012

ACS is pleased to distribute “The Converging Logic of Federalism and Equality in Same-Sex Marriage Recognition,” an Issue Brief by Mae Kuykendall, Professor of Law at Michigan State University College of Law. The path to marriage equality might be less complicated if the U.S. Supreme Court were to require the states to recognize same-sex marriages created in other states, without exception, Kuykendall asserts.

In this Issue Brief, Kuykendall explains that the answer to the dilemma of same-sex marriage need not necessarily be a determination by the Supreme Court that marriage is a fundamental right. Instead, she presents a bold case for the high court to follow, one that relies heavily on equality principles. The “first step,” Kuykendall writes, “in recognition rules would be to require every state to treat all same-sex marriages domiciled in the state as marriages under the state’s marriage law.” In conclusion, she explains that, “a society committed to the equality of persons under the law may not treat marriages with disdain. To ensure a fairer treatment of marriage, equality is needed as a strong partner to federalism, not merely an occasional helper…”