If you live in a region of the country governed by a federal appeals court that has found a constitutional right to same-sex marriage, you are free to enter into a same-sex marriage — even if your state only recognizes traditional marriage. For example, same-sex marriage is now legal in the United States Court of Appeals for the Fourth Circuit, which includes Virginia, North and South Carolina, Maryland and West Virginia.
Certainly, the court decisions finding a constitutional right to same-sex marriage are faulty. The Supreme Court’s 1972 summary decision in
Baker v. Nelson is, formally at least, still good law.
That decision — which implicitly held that there is no federal constitutional right to same-sex marriage — was not overturned by last year’s
Windsor v. United States decision.
In fact, the Windsor decision overturned parts of the Federal Defense of Marriage Act, but didn’t even mention the Baker case. It seems that as far as the Supreme Court is concerned, states are free to enact same-sex marriage laws, or not to enact them.
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