Federal Judges Have Authority To Overturn Same-Sex Marriage Bans

What seemed like a long and daunting uphill battle just a few years ago, now seems like an inevitable reality. In the last 11 months, 14 states have had their bans on same-sex marriage struck down, and same-sex marriage is now legal in 18 states, including the District of Columbia.

Just this week, both Oregon and Pennsylvania had their bans on same-sex marriage overturned by federal judges for being unconstitutional. Both Oregon and Pennsylvania state officials have declined to defend the laws in court.

The ruling in Pennsylvania by Judge John E. Jones III — appointed by George W. Bush — marks the fifteenth straight win for marriage equality since the Supreme Court struck down section 3 of the Defense of Marriage Act in 2013.

While supporters of same-sex marriage are euphoric over the string of rulings, this trend has not gone unopposed. Many who are opposed to same-sex marriage are outraged over the rulings, asserting that judges have no right to overturn the vote of the people — labeling them “activist judges.”

Though it may seem frustrating for the opposition to watch individual judges in one fell swoop throw out amendments that millions of people voted for, they have every right to do so.

Many will try to frame this as a states’ rights issue and argue that if a state wants to ban same-sex marriage, then that is the state’s right to do so. The problem this line of thinking faces is a misunderstanding of the Tenth Amendment.

The Tenth Amendment states:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.” 

While states have a right to settle for themselves issues not specified in the Constitution, they cannot violate the Constitution. In the United States, federal law trumps state law. Regardless of whether something is popular, if it violates the U.S. Constitution, it cannot be permitted in a state constitution.

In United States v. Windsor, the Supreme Court ruled that restricting interpretations of marriage to only heterosexual couples is a violation of the Due Process Clause in the Fifth Amendment, and is thus unconstitutional. On the same day, the high court issued the ruling on DOMA, it also dismissed the case of Hollingsworth v. Perry, allowing the decision by the lower court decision to stand that California’s ban on same-sex marriage was a violation of the equal protection clause in the Fourteenth Amendment.

If a state voted to ban the right to trial and counsel for certain people, we would expect a judge to step in and overturn the vote for violating the Sixth Amendment. For that same reason (violating the Constitution), judges are striking down gay marriage bans state by state.

As far as “overriding the will of the people,” public opinion on same-sex marriage has soared to all-time highs since 2004 and 2006 when most of the constitutional bans were approved by voters.

Last week, Gallup released a new poll asking respondents, “Do you think marriage between same-sex couples should or should not be recognized by the law as valid, with the same rights as traditional marriages?” The results of the poll came back with 55 percent of Americans supporting same-sex marriage, while 42 percent oppose it.

Even in states where voters approved constitutional amendments banning same-sex marriages, a Washington Post poll discovered that in those 33 states, 53 percent now support allowing it, while 40 percent oppose. In the two states where judges overturned voter-approved bans this week, public polling shows large support for same-sex marriage.

In Oregon, a recent poll conducted by DHM research found that 58 percent were in favor of allowing same-sex marriage. In Pennsylvania, a February poll conducted by Quinnipiac University found that 57 percent support allowing gays to marry.

Based on these trends, it would appear that if anything, these recent judge rulings are affirming the will of the people, not overriding it.