If not then what is the big hullabaloo, the states are free to pass constitutional amendments banning same sex marriage, why does anyone think a federal constitutional amendment is necessary?
No court has found such a right to exist under federal law. The fear is that the US Constitution has a clause which requires one state to give its “full faith and credit” to other states’ laws. The “full faith and credit” clause is what allows a couple to get married in Iowa and have that marriage recognized in Illinois. The fear is that a “lone-wolf” state like Massachusetts (or possibly New Jersey–we’ll see what the NJ Legislature decides) could marry a same-sex couple. Then that couple could move to Iowa and argue that Iowa must accept the Massachusetts marriage based on the “full faith and credit” clause.
Another issue is the issue of “comity.” Comity is basically the same thing as “full faith and credit,” but it applies across international boundaries. The argument under Comity is that a same-sex couple could get married in Canada, Spain, Belgium or South Africa and then come to the US and try to get the marriage recognized here (for immigration status or any other purpose).
The US has a federal law called the “Defense of Marriage Act” (DOMA). DOMA states that for federal purposes, marriage is between one man and one woman. DOMA also states that one state need not recognized a same-sex marriage from another state. Even though DOMA is on the books, there is a fear that a federal court could rule that DOMA is unconstitutional and find that the “full faith and credit” clause trumps DOMA. The argument is that the only way to avoid such a ruling is to amend the US constitution to define marriage in a certain way. That way, all US courts and all state governments would be bound by such a rule.
First, AFAIK no Federal court has in fact recognized any such right. With one arguable exception, SCOTUS has never ruled on the question or related issues in any way, and I know of only one case (the arguable exception noted) in which any Federal court has. In that exception, which I don’t fully understand and await clarification by a Doper-at-Law about, SCOTUS refused to hear arguments on a District or Circuit Court decision that summarily adjudged that a suit to mandate a state to grant a gay union was without merit. In the arcana of Federal court procedure, some forms of “We’re not gonna hear that case” set precedent and others do not, and it’s claimed by the anti-gay-marriage crowd that this does in fact set precedent. I remain unimpressed by the arguments, pending clarification by someone who understands (a) the law and (b) the rudiments of English prose (the second was a failure of the AGM people who argued it on another board).
However, there are two sound reasons underlying why “leaving it to the states” is a bad move, IMO.
First, if there is such a thing as a right to marry the consenting person of one’s choice and it is due to all citizens on an equal basis, which I think is a reasonably fair conclusion from the Loving precedent and the Fourteenth Amendment, then that right is one guaranteed which the States are prohibited from abridging. (Well, technically they can abridge it if the law doing so is “closely connected with a compelling government interest” – essentially, that the government cannot function properly with gay marriages in place. And only the most extreme of religious nutjobs claim that allowing gay marriages will directly result in the downfall of American government. This argument, of course, is founded in being pro gay marriage.
The other one is a bit arcane, and falls into two elements. And it is of course in support of the anti position. (Obvious disclaimer: What follows is explaining the anti position, not argumentation in favor of a view I personally hold.)
One half of it is based in a religious conviction that any recognition of “gay marriage” (which has to be put in sneer quotes, as not being “really” a marriage) is an undermining of the divinely-founded institution of marriage, which was defined by God Himself as being between one man and one woman. (Editorial comment by me: The fact that the two Bible verses cited were talking about something quite different, and that God seems to have looked approvingly on the polygyny of the Biblical patriarchs, is handwaved away.) Therefore, it is damaging to the institution of marriage in, say, Mississippi or Idaho, that Massachusetts permits “gay marriage” and that two states allow civil unions. In the perspective of those who argue this, the transference from religious belief to secular civil institution, and the barring of government decisions made on an exclusively religious basis, are not of any significance.
The other half of it is relatively more sound, and founded in sensible jurisprudence. Quite simply, any court, from the West Podunk police court to the state courts of last resort and SCOTUS, is obliged to abide by the U.S. Constitution and to throw out as unconstitutional any laws which in its informed judgment conflict with the latter. This means that a state constitutional amendment guarantees that no state court can interpret state law to permit or require shudder gay marriages – but any court, Federal or state, that sees a protection for gay marriages in the broad and sweeping guarantees of rights in the Federal constitution, is quite capable of throwing out the state constitutional amendment as in violation of the U.S. Constitution, which is by definition the supreme law of the land.
Not quite a parallel, but this is exactly what happened relative to a strong anti-gay provision in the Colorado state constitution in Romer v. Evans. (In that case, the amendment struck down was so sweeping in its effects and so unfounded in any reasonable government purpose that it did the near-impossible: violated the minimum, ordinary scrutiny standard – which translates to, “However misguided we may think they were, this court takes notice of the fact that the legislature was not universally legally insane, and had some reason, however stupid, in mind when they passed this law, however inappropriately, that connects in some vague way to the legitimate business of government.” There have been very few cases in which a law was thrown out as not meeting ordinary scrutiny; the Romer decision voiding Colorado’s Amendment II was one of them.)
Essentially, then, a state constitutional amendment is seen by the opponents of gay marriage as not enough protection against its insidious strength. Only a Federal amendment, putting any legal protection for gay unions completely beyond the pale of the courts, will satisf them.
You’re talking about Baker v Nelson, a case out of Minnesota.
In a word: Roe v Wade.
In another word: Goodridge v. Department of Public Health. If a state court can find the right to SSM in the state’s constitution, it isn’t a stretch to think that the SCOTUS could find that right in the US constitution. Perhaps not this SCOTUS, but some future court. I personally find it highly unlikely, but it’s easy to see that quite a few people might be scared into thinking it could happen.
n.b.: I’m not commenting on the rightness or wrongness of this thinking, just noting, in GQ fashion, that it exists and that it shouldn’t be too surprising that it exists.
It isn’t necessary at all, but keeping it as an issue will turn out more religious right voters, who will vote for republicans.
That is the opinion of many democratic strategists. They point out that even many of those proposing it are aware that it is not going to pass, but push it anyway for it’s effect on voter turnout.
In Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493, 502 (1939), the U.S. Supreme Court wrote:
Yeah, I don’t think it’s out of the bounds of GQ rules to state that Republicans often use SSM as a wedge issue. It’s smart politics. Afterall, politics is the art of gaining and maintaining power.