The Ninth Circuit\u27s \u3ci\u3ePerry\u3c/i\u3e Decision and the Constitutional Politics of Marriage Equality

In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause. Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex couples. The major theme of the Yes-on-Eight campaign was that the state should not deem lesbian and gay unions to be “marriages” because schoolchildren would then think that lesbian and gay relationships are just as good as straight “marriages.” Proposition 8 intended that gay and lesbian couples be carved out of civil marriage and relegated to a separate institution, domestic partnerships. The court properly viewed this official status segregation with suspicion—a suspicion that was confirmed by the proponents’ open denigration of lesbian and gay marriages and their inability to tie taking away marriage rights to a genuine public interest. The original meaning of the Equal Protection Clause was that the Constitution does not tolerate class legislation—namely, laws that separate one class of citizens from the rest and bestow upon its members a less esteemed legal regime and, with it, an inferior status. This is exactly what Proposition 8 did. Hence, Judge Reinhardt was strictly enforcing the original meaning of the Equal Protection Clause, as applied to the facts before him

Post-Enactment Legislative Signals

Statutory interpretation, considered from the perspective of positive political theory, yields a number of iconoclastic conclusions. A model suggesting that judges pay attention to legislative history is argued to not present a robust positive theory of the Rehnquist Court\u27s decisions

Super-Statutes

Not all statutes are created equal. Appropriations laws perform important public functions, but they are usually short-sighted and have little effect on the law beyond the years for which they apportion public monies. Most substantive statutes adopted by Congress and state legislatures reveal little more ambition: they cover narrow subject areas or represent legislative compromises that are short-term fixes to bigger problems and cannot easily be defended as the best policy result that can be achieved. Some statutes reveal ambition but do not penetrate deeply into American norms or institutional practice. Even fewer statutes successfully penetrate public normative and institutional culture in a deep way. These last are what we call super-statutes

Vetogates, Chevron, Preemption

Article I, Section 7 of the Constitution creates a structure that makes it difficult to enact federal statutes: in order to become a Law, statutory proposals must be accepted in the same form and language by both the House and the Senate and must be presented to the President. Fifteen years ago, scholars from a variety of perspectives seized upon this structure to think about its implications for American public law. Professor Bradford Clark argues that the lawmaking process entailed in Article I, Section 7 is one constitutional structure that helps safeguard federalism . . . simply by requiring the participation and assent of multiple actors before there can be a national Law that can preempt state law under the Supremacy Clause. He also argues that the Article I, Section 7 structure provides a reason for the Supreme Court to rethink at least one feature of its Chevron doctrine, namely, the deference the Court sometimes gives to dynamic agency interpretations that have the effect of preempting state law. For agency lawmaking that is Chevron-eligible, the Court asks whether Congress has directly addressed the issue; if not, the Court accepts the agency view so long as it is reasonable. Some judges and commentators have argued that Chevron deference ought to apply very broadly, to any case where an agency has authoritatively interpreted a federal statute. The Court and most commentators have limited Chevron to instances where the agency is acting under the auspices of a congressional delegation of lawmaking authority

Latter-Day Constitutionalism: Sexuality, Gender, and Mormons

The extensive involvement of the Church of Jesus Christ of Latter- day Saints in the campaign that in 2008 overrode gay marriage in California brought sharp scrutiny to the interaction of Mormon theology and public constitutionalism. This Article explores Latter-day constitutionalism as an important normative phenomenon that illustrates the deep and pervasive interaction among social norms, constitutional rights, and faith-based discourse

The Many Faces of Sexual Consent

Returning from time to time to the Califia short story, this Article explores the role of sexual consent in American law. I first examine the many faces law finds for consent or its opposite; these many faces reveal the impossibility of divorcing consent from context and social policy. For this reason, the very meaning of consent has changed markedly in the last generation in response to women\u27s increased power. My thesis is that the law of consent ought to and probably will change in other ways now that gay power joins and sometimes stands in opposition to women\u27s power. Jessie illustrates one cutting edge-sadomasochism (S&M)-that serrates traditional liberalism, modern feminism, and gaylaw