Legal History Commons^™

Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman

Charles H. Baron

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …

States Rights > Gay Rights, Kent Greenfield

Kent Greenfield

By now you've heard from the various news sources that, in this week’s Supreme Court arguments on California's Proposition 8 and the Defense of Marriage Act, a majority of justices expressed skepticism over both. So it's imaginable—even probable, if you believe the news—that we will find ourselves at the end of June with DOMA in the junk pile and marriage equality back on the books in California.

But don't put the pink champagne on ice just yet. In both days of argument, the justices spent an extraordinary amount of time dealing with knotty procedural issues. Both cases are complicated by …

Weird Friends Of The Court, Kent Greenfield

Kent Greenfield

If you’ve felt encouraged by recent trends in favor of gay rights—including the new Washington Post poll showing 58 percent of Americans support marriage equality—swing over to SCOTUSblog and read some of the nearly 60 “friend of the Court” briefs opposing gay marriage.

On Tuesday and Wednesday of next week, the Supreme Court will hear arguments in two cases—the first on California’s Prop 8, the second on the Defense of Marriage Act—that could determine whether the federal government can define marriage as between a man and a woman, and whether state bans on same-sex marriage are unconstitutional. The parties are …

The Glocks Are Falling! The Glocks Are Falling!, Kent Greenfield

Kent Greenfield

The gun crowd is so paranoid about the erosion of their Second Amendment rights that they make Chicken Little look like an actuary.

The president’s recent gun proposals include initiatives such as expanded background checks, a ban on certain military-type rifles, and limits on the size of magazines. But if you listen to the gun folks, even these tepid proposals are—to quote a past president of the National Rifle Association—“unconstitutional schemes to gut the Second Amendment.” Iowa Senator Charles Grassley accused Obama of thinking “the Second Amendment can be tossed aside.” Any skeptical glance in the direction of that Glock …