How does state law trump the constitution?
I'm from Canada, and am not a lawyer but think I know US law better than most Canadians... okay, so here goes...
Any federal law must comply with state law. Any state constitutional amendment must comply with the US federal constitution (hence why state constitutional amendments have greater depth of analysis under federal courts than state courts).
Constitutional changes trump state law - ex: notwithstanding the prop 8 court decision, if CA lawmakers passed gay marriage by statute, and then an amendment prohibited it, the constitutional amendment would stand.
So, I am curious then why did the Arkansas Attorney General in the article I just read, just reject a ballot title wording saying that it was misleading as if the amendment passed it wouldn't legalize same-sex unions as the statute would still stand.
The amendment reads:
The Arkansas Marriage Equality Amendment
AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO PROVIDE THAT THE RIGHT TO MARRY SHALL NOT BE ABRIDGED OR DENIED ON ACCOUNT OF SEX OR SEXUAL ORIENTATION – PROVIDING THAT NO MEMBER OF THE CLERGY OR RELIGIOUS ORGANIZATION SHALL BE REQUIRED TO PROVIDE ACCOMMODATIONS ADVANTAGES, FACILITIES OR PRIVILEGES RELATING TO THE SOLEMNIZATION OR CELEBRATION OF MARRIAGE AND THAT THE REFUSAL TO DO SO SHALL NOT CREATE ANY CIVIL CLAIM OR CAUSE OF ACTION.
Proposed Constitutional Amendment
Be it enacted by the people of the State of Arkansas:
•SECTION 1. The right to marry shall not be abridged or denied on account of sex or sexual orientation.
•SECTION 2. No member of the clergy or religious organization shall be required to provide accommodations, advantages, facilities or privileges related to the solemnization or celebration of marriage. The refusal to do so shall not create any civil claim or cause of action.
I understand that the amendment isn't worded like other non-constitutional initiatives that specifically define who can marry as between 2 people... however, it is clear what 'sexual orientation' means... everybody knows it, and certainly there will be newspaper ads, and tv ads, and radio ads, etc?? So I'm confused.
- Lynn BodoniLv 77 years agoFavorite Answer
You've got it backwards. In the US, federal law trumps state law. So, if a state passes a law that contradicts federal law, the state law might be on the books, but it won't be enforced.
The US doesn't have any federal laws that prohibit or specifically allow same sex marriage, it's state by state.
- John SLv 77 years ago
This is not (at least, not yet) a matter of the supremacy of the US Constitution, because the US Constitution has not (as yet) been found to compel any state to permit same-sex marriages. Some people are trying to change the Arkansas Constitution to permit same-sex marriages in that state. One may presume that the Arkansas AG is opposed to any such measure, and thus will throw as many roadblocks in front of it as possible. In this case, he has rejected the ballot measure on the ground that it "contained misleading tendencies and a failure to include any mention of the proposal’s effect on the state’s current law, Amendment 83, which was approved with 75 percent of the vote." This seems obviously fatuous to me. Since a constitutional amendment is obviously intended to change the law, it is superfluous to say that it changes the law.
Personally, I think the next step will be a ruling that states must recognize same-sex marriages performed in other states (just like they must now recognize other forms of marriage that could not be performed in that state, such as marriages between cousins or between people of particular ages). Once that happens, the question of whether any particular state allows such marriages will essentially be irrelevant.Source(s): 35+ years as a criminal defense attorney
- Little PrincessLv 77 years ago
I'm not sure if this is quite what you're asking, but there isn't anything in arKansas law that prevents or prohibits gay people from getting married. They can get married just like anyone else can. The catch is that they cannot get married to each other. A gay man can marry any woman, just like a straight man can.
If their intention is to allow two men or two women to get married to each other, they would probably want to word their amendment better to explicitly say that.
I haven't looked into anything the arKansas AG has said on the matter, so it might be totally off. But that would be one of my major concerns is that it doesn't explicitly say what its intentions are. When that happens, it's left up to the interpretation of others who might interpret it totally different from what the voters may have intended.