Journal of Civil Law Studies


In the United States of America, because of federalism, the power to legislate on marriage and to decide who can marry and with whom, belongs to the legislature of the individual states. However, state legislative power may be curbed by state constitution (under the control of state courts and possible review by the state supreme court) and the United States Constitution (under the control of federal courts and possible review by the United States Supreme Court). The question whether homosexual couples have access to marriage was bound to become a constitutional issue. More and more states opened marriage to same-sex couples, either amending their legislation or by the effect of judicial review of restrictive legislation, found unconstitutional at state or federal level. In the meantime, other states remained adamantly opposed, some of them amending their constitution to make same-sex marriage unconstitutional at least within the state. Dealing with a flow of appeals, though mostly holding any ban to same-sex marriage unconstitutional, U.S. Circuit Courts of Appeals ended up being divided, forcing the U.S. Supreme Court to make a decision. With a short majority of five to four, same-sex marriage was made legal nationwide. While showcasing the American dimension of a social debate, this article explains how federalism made this a complex legal issue and development.

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