Same-Sex Marriage in the United States – Why do States’ Rights trump Gay Rights?

Durham Law Student, Jesse Bachir, explores the legal position of same-sex marriage in the US.

Same-sex marriage has seen some very good progress lately, especially with the recent election. In fact, the election brought same-sex marriage to Maine, Maryland and Washington by referendum – the first time in US history that same-sex marriage has been legalised via popular vote. Minnesota voters also defeated a proposed constitutional amendment to ban same-sex marriage at the ballots during the election. All of this, along with openly gay, lesbian and transgender representatives being elected to national and state legislators, as well as President Obama being elected for a second term, made this past election a very exciting time for the LGBTQ community. However, there are still some major hurdles to overcome for same-sex marriage in the United States

Marriage in the US 101

Very briefly, it is important to note the distinction between state and federal powers in the United States before continuing with any discussions of same-sex marriage within the US. Marriage is a right reserved by the states – meaning that they have the power to legislate as to the definitions and requirements of marriage. If you want to get married, you must go to the state and follow their particular rules governing marriage.

Once you are married, you are conferred apposite rights and privileges by the state as well as the Federal Government. However, it is up to each individual state to determine who is married within their jurisdiction – meaning that in order to gain access to federal marriage rights, you must first have access to state marriage rights.

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So Butler-Sloss, our women and ethnic minority lawyers aren’t up to the job?

Erika Rackley, Durham Law SchoolThis article originally appeared on the Guardian Law pages on 31 May 2012.

Apparently, we now have an answer to why our judiciary remains one of the least diverse in the world: our women and ethnic minority lawyers just aren’t good enough. During the second reading of the crime and courts bill earlier this week, Lady Butler-Sloss began well. She gave “strong support” for greater diversity among those appointed to the judiciary – so long as, of course, that such appointments are made “on merit”. Few would disagree with that.

However, in attempting to underline this point, things went downhill. Butler-Sloss continued: “It will be very important that women – particularly those from ethnic minorities – who may not be able to bear the strain of the judicial process are not placed in a position where they may find themselves failing because there has been too much enthusiasm for diversity and not enough for merit. This is very important. I have a vivid recollection of a woman judge many years ago who was a very fine pianist. She should have remained a pianist”.

To be fair, her qualification that there was “perhaps” too much enthusiasm for diversity in contrast to merit failed to make it into the Hansard transcript – but there again neither did her colleagues’ gentle titter which followed her remark.

So are ethnic-minority women judges just not up to the job?

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Taking sex crimes seriously: Bemba trial

Chantell Burrows

(Blog editor)

International courts play an increasingly important role within the international order, in particular, the international criminal court (ICC) is set to become highly influential.  It ‘is the first permanent, treaty based, international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community.’  However despite its potential to dramatically improve justice for victims of international crime there is very little public awareness of this body, and further, it is yet to deliver a judgment. 

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How Feminism Could Improve Judicial Decision-making

Erika Rackley

(Guest Contributor, Durham Law School)

What difference would it make if a judge’s feminist values and perspectives were included in their decision-making?

Can judges be feminists? Should judges be feminists? On one view the answer is easy: no. We don’t want our judges to be activists. We don’t want them to promote their own political agendas. We want them to do their job. We want them to apply the law. 

Now, of course, we can all agree that we want our judges to take their judicial responsibilities seriously. But judges – especially those at the highest levels – are often called on to make decisions where the existing legal rules provide no clear answer. In such cases, the judge must turn to their own sense of justice, of what is right and wrong, to decide the case.

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