if federal law trumps state law. why are individual states fighting the issue of gay marriage?

Question

the marijuana laws are a perfect example. you might be able to smoke weed according to californias state law{approved of course} but on the federal level it is against the law and federal officals can and will arrest you.
so what is the use in fighting the issue of gay marriage on a state level when even if it does pass on the federal level it is a moot point unless it is recognised by the federal government.

fyi no i'm not gay. just wondering why people are spending time and effort for a cause that needs to be brought to a higher court

Answer 1

The fight among the states about gay marriage is because of the "full faith and credit" provision (in the US Constitution) that exists between the states.
This means that one law that exists in one state may not be the law in the next state over, but the next state over will respect the law. Like, if massachusetts recognizes gay marriage, then the couple married in mass. can go home to NYS and, because of full faith and credit, still be recognized as married, even though its not legal in NYS.

This works for a lot of things, not just gay marriage. So, when one state recognizes it, by law, all the states must recognize it. The only way to not have this happen would be to have a federal amendment making it national law. I hope this answers your question.

Answer 2

The devil is in the detail. The Tenth Amendment (I think) reserves powers for the states unless the Feds are entitled to legislate. Frequently, the Feds do not legislate something directly. For instance, it is state law in every state (I believe) that the drinking age is 21. This is not federal law but was instituted by a federal ruling which severely restricts highway building funds for any state which has a legal drinking age of less than 21.

Likewise, here in NC, a political lobbyist was convicted in Federal court of wire and mail fraud. The offences he committed were actually state offences but it was easier to get him on the federal ones, so the Feds took the case.

So, to take the gay marriage question, the Federal government has no right to legislate. It does have the right to ask states if they want to change the Constitution, though. That is the only way Federal "Law" will trump state law in this issue.

I am not sure what law permits the feds to arrest anyone for smoking marijuana. Perhaps someone else can enlighten us. I have a hard time supporting drug use, but it would be interesting from a constitutional point of view. I prefer defence of constitutional rights to opposition to the recreational smoking of pot. Any observant person reading this will surmise that I am from the UK - been in the USA 5 years. I think the US Constitution is a beautifully crafted document which has stood the test of time and is well worth defending in its entirety.

Answer 3

Because the federal government does not legislate marital status. A good example is common-law marriage, which is de facto marriage even though there was never a formal ceremony. Some states (particularly western US states) allow it, while others do not.

The feds have a hands off approach to how states define marriage - there are no domestic relations federal courts. So, the reason why states are fighting over gay marriage is that states define "marriage." The only way the feds would do it is if a constitutional amendment passed.

Answer 4

It's very complicated, but in short there are some issues that federal law does not address. Each state performs marriages and has its own marriage laws. There is no "federal" marriage ceremony that I know of, although federal laws define marriage for some purposes (social security, etc.)

The federal government has little or nothing to say about a state's marriage law unless that law violates the federal constitution or a federal law.

A federal constitutional amendment, though, would apply to all the states.

There's a lot more to it, but that's a start.

Answer 5

There is no Federal law for or against smoking marijuna. There is a law against transporting it across state lines especially to sell and distribute. The Federal government will not arrest you for smoking weed in any state. They will arrest you for distributing it. There is no Federal law for or against "gay" marriages. The states that gay marriage laws are being challenged have rights, such as community property, rights to state benefits, etc that are allowed to married couples, but are not allowed for domestic partners. Also, if enough states allow gay marriages, homosexuals will then be able to challenge the laws of states that do not allow gay marriages and it will go to Federal courts for decision. If the Federal courts decide for gay marriages, then it can become the law of the land.

Answer 6

Mr. Wolf and Nonalc2 are right. As long as a state is part of the United States, it is bound by the supremacy clause of the U.S. Constitution. Interestingly there is no constitutional provision that prevents them from seceding from the United States, except for the fact that when some states tried it in 1860, President Lincoln declared martial law and suspended their Constitutional Rights all together. I would find it interesting if Governor Brewer were carted off by federal agents. Governor Blagojevitch shouldn't have all the fun.

Answer 7

Federal law only "trumps" state law in matters of Federal primacy: either under the commerce clause, or foreign affairs, or military or bankruptcy, or Indian law, etc.

State law determines matters of personal status. Federal law can refuse to recognize that status within the bounds of constitutional law. Thus one may be married for some purposes (inheritance, for example; or legitimacy of children) but not for others. This happens all the time: some states allow cousin marriages; some recognize cousin marriages legally solemnized in another state; some refuse recognition under any circumstances (other than, perhaps, of active-duty military personnel stationed there; or foreign diplomats, etc.)

Federal law pre-empts state law in matters of drugs and in certain crimes. In some penal matters there is parallel jurisdiction. And the double-jeopardy clause does not protect the accused when two different sovereigns prosecute (federal, state, Indian tribal court). Unless the state constitution says otherwise, as California's does: http://tinyurl.com/5grws

Answer 8

Your assumption is incorrect. Try reading the US Constitution. Federal law "trumps" state law only in areas that are properly a federal concern. In the "example" you cite, state law still rules for state agencies and police, but the federal law may be enforced by federal authorities.

In fact, of course, the US Supreme Court has overruled the Justice Department's attempts to go after doctors who comply with state law when it comes to rx marijuana.

Answer 9

There is no federal law that defines marriage as being between one man and one woman. If it isn't covered by federal law, the 10th amendment declares that it is the prerogative of the individual states.

If the federal government decides it is within its jurisdiction to define marriage it will be written into the United States Constitution.

People who oppose gay marriage would like it to be outlawed by Constitutional law.

Answer 10

Because States still have individual rights.