Law Commons^™

The High Power Of The Lower Courts, Doni Gewirtzman

Other Publications

No abstract provided.

Federalism, Marriage, And Heather Gerken's Mad Genius, Kristin Collins

Faculty Scholarship

In her characteristically astute and engaging essay, Professor Heather Gerken offers a sensitive and sympathetic reading of Justice Anthony Kennedy’s majority opinion in United States v. Windsor.¹ Her core claim is that Windsor—and the transformation of political and legal support for same-sex marriage in the United States—demonstrate how “federalism and rights work together to promote change” and, in particular, how federalism furthers the equality and liberty values of the Fourteenth Amendment.² This is a natural line of argument for Gerken to develop with respect to Windsor, as she has produced an incredible body of scholarship dedicated to what …

Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel

Faculty Scholarship

This Article asks what the Supreme Court’s opinion in United States v. Windsor stands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The Article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The Article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism rhetoric—like manipulating the tiers of scrutiny …

United States V. Windsor And The Role Of State Law In Defining Rights Claims, Ernest A. Young

Faculty Scholarship

The Supreme Court’s recent decision in United States v. Windsor is best understood from a Legal Process perspective. Windsor struck down Section 3 of the federal Defense of Marriage Act (“DOMA”), which defined marriage as exclusively between a man and a woman for purposes of federal law. Much early commentary, including Professor Neomi Rao’s essay in these pages, has found Justice Kennedy’s opinion for the Court to be “muddled” and unclear as to its actual rationale. But the trouble with Windsor is not that the opinion is muddled or vague; the rationale is actually quite evident on the face of …

Doma And The Happy Family: A Lesson In Irony, Rhonda Wasserman

Articles

In enacting the Defense of Marriage Act, Congress chose to protect heterosexual marriage because of its “deep and abiding interest in encouraging responsible procreation and child-rearing. Simply put, government has an interest in marriage because it has an interest in children.” Ironically, DOMA may harm, rather than protect, the interests of some children – i.e., the children of gay and lesbian couples.

Both state and federal law reflect the belief that children are better off being raised by two parents in an intact family. This belief is reflected in the marital presumption of paternity, which presumes that a married woman’s …

Reshaping Federal Jurisdiction: Congress's Latest Challenge To Judicial Review, Helen Norton

Publications

This Article examines growing congressional interest in a specific legislative check on judicial power: controlling the types of cases judges are empowered to decide by expanding and/or contracting federal subject matter jurisdiction. Congress has recently sought to shape judicial power through a range of proposals that variously enlarge and compress federal subject matter jurisdiction. In 2004, for example, the House of Representatives voted to strip federal courts of jurisdiction over constitutional challenges to the Defense of Marriage Act and the Pledge of the Allegiance. Just a few months later, the new 109th Congress undertook a groundbreaking expansion of federal subject …

Resurrecting Comity: Revisiting The Problem Of Non-Uniform Marriage Laws, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This paper addresses the age-old problem of interstate marriage recognition, raised anew by the legalization of same-sex marriage in Massachusetts. The problem, in a nutshell, is whether and when a state should recognize a marriage validly celebrated elsewhere when its own laws would have prohibited the marriage from taking place.

Non-uniform marriage laws and the conflicts they engender are not new. To the contrary, states historically disagreed about many aspects of domestic relations laws, and in particular about marriage prohibitions. Conflicts arose when couples married in one state and then sought recognition of their union in a state that would …