Doesn’t the states’ rights argument in the Commonwealth’s case bolster the right of states like California to deny marriage equality to same-sex couples?
No. The Tenth Amendment guarantees involved in the Commonwealth’s case concern the relationship between the federal government and the states and ensure that the federal government does not invade state prerogatives. The federal government does not marry people; states do. At the same time, when a state exercises its powers, as it does in setting criteria for marriage licensing, it must still comply with the equality guarantees of the federal Constitution, which is the supreme law of the land. A state that denies equal protection of the laws or withholds a protected liberty without justification violates those equality protections. The Supreme Court’s decision in Loving v. Virginia striking down state laws barring marriages of people of different races made that clear. Whether state laws like California’s that bar marriages of people of the same sex likewise violate the U.S. Constitution’s guarantee of equality and liberty is an entirely different legal question from whether the federa
