Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 2 of 2
Full-Text Articles in Law
A Friendly Amendment, Larry Yackle
A Friendly Amendment, Larry Yackle
Faculty Scholarship
Heather Gerken comes to praise Justice Kennedy’s opinion for the Supreme Court in United States v. Windsor. 1 I come to praise Gerken’s valiant effort to recast the Windsor opinion along more convincing lines.2 Gerken does not propose a wholesale substitute for Justice Kennedy’s analysis. She suggests a shift in emphasis that lends Kennedy’s explanation for condemning DOMA a surprising jurisprudential significance. Where some us have seen yet another lamentable paean to the sovereignty of the states, Gerken detects the faint hint of the “nationalist” school of federalism that she and others have nurtured in recent years.3 Gerken does not …
Federalism, Marriage, And Heather Gerken's Mad Genius, Kristin Collins
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 …