3 their authority when they democratically decide whether to recognize same-sex marriage.
See, e.g., id.
at 2692-93 (observing “[t]he dynamics of state government in the federal system are to allow the formation of consensus” respecting a “far-reaching” matter like same-sex marriage). In contravention of
, plaintiffs would constitutionalize the issue and nullify Louisiana’s authority to decide it. Plaintiffs’ claims should fail for that reason alone.
Def. MSJ (Doc. 84-1) 3-7.
Last month, the Supreme Court reinforced
’s respect for state authority in
, which rejected an equal protection challenge to a Michigan constitutional amendment forbidding affirmative action in public universities. The Court found that “Michigan voters [had] exercised their privilege to enact [the amendment] as a basic exercise of their democratic power.” 134 S. Ct. at 1636 (op. of Kennedy, J.). Recognizing the amendment reflected “the national dialogue regarding the wisdom and practicality of [affirmative action],”
held that “courts may not disempower the voters from choosing which path to follow.”
at 1631, 1635. To deem affirmative action too “sensitive,” “complex,” or “delicate” for voters would be “an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common.”
at 1637. “It is demeaning to the democratic process,” the Court said, “to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational
Their claims also fail in light of the Faith and Credit Clause, which does not require a state to recognize out-of-state marriages. Def. MSJ 7-10;
Baker v. Gen. Motors Corp.
, 522 U.S. 222, 232-33 (1998) (full faith and credit “does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate”) (citation omitted). Congress confirmed that principle by enacting DOMA section 2. Def. MSJ 9-10 (discussing 28 U.S.C. § 1738C).
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