Who Decides and What Difference Does It Make?: Defining Marriage in Our Democratic, Federal Republic

The debate over the legality of same-sex marriage has centered largely on the substantive merits of the issue. This article does not. Instead, it seeks to draw attention to the perhaps equally important-but often overlooked-issue of the proper form and forum for resolving the substantive issue. It asks the question, if we awoke tomorrow to the newspaper headline -- Legality of Same-Sex Marriage Decided -- what difference would it make if the succeeding story referred to 1) a federal statute, 2) a U. S. Supreme Court decision, 3) a federal constitutional amendment, 4) a state statute, 5) a state supreme court decision, or 6) a state constitutional amendment? The article attempts to answer that question in light of the structure of what I call our democratic, federal, republican form of government. The article proceeds in three parts. Section one considers the nature of the decision a government makes when it defines marriage, examining the various governmental interests in defining marriage which have been identified by proponents and opponents of legalizing same-sex marriage. Section two then describes the key components of our democratic, federal republic, highlighting both theoretical and practical reasons for the adoption of those components. Section three evaluates the relative merits of deciding the same-sex marriage issue in each of the six potential forms in terms of compatibility with the key components of our system of government, at the same time examining some practical effects of deciding the issue in some of the forms.This analysis indicates that where, and in what form, the same-sex marriage debate is resolved has implications for both our current governmental system and the long-term viability of the solution, whatever it may be. It also indicates that the best hypothetical newspaper story would begin with the phrase, The state constitution was amended today ...

Two Sides of the Same Coin: The Potential Normative Power of American Cities and Indian Tribes

People do not normally associate cities with Indian reservations. The mental images typically conjured by each term are radically different. Perhaps for that reason, few think of city governments and tribal governments in similar terms.However, the two forms of government - cities and Indian reservations - have many things in common. Both are excluded from the federal constitutional framework. Both are subject to the plenary power of one of the constitutionally recognized governments - cities to the state government, tribes to the federal government. Both are the most intimate form of government with which most of their residents are familiar.More importantly, cities and tribes both have the potential to perform a role that neither national nor state governments are capable of performing. Local governments can create and give meaningful voice to diverse value systems. This function of cities and tribes furthers two important societal interests. First, it provides people with a much-needed sense of community, reversing the sense of alienation prevalent in modern liberal society. Second, it promotes the preservation and tolerance of disparate viewpoints, contributing to a vibrant pluralistic society.This Article draws on the experiences of both cities and tribes to define the role that local governments could and should play in the American federal structure. Part II examines the current theoretical and practical status of cities and Indian tribes in the United States. Part III outlines the similarities and Part IV the differences between cities and Indian tribes. These sections highlight the meaningful comparisons between cities and tribes, and demonstrate that they share characteristics which equip them to perform functions that neither the federal nor state governments can carry out. Part V provides an explanation of the unique normative role that cities and tribes can play in modern society. Part VI demonstrates how courts could facilitate the implementation of this unique role in discrete judicial controversies. This Article concludes that cities and tribes truly are different sides of the same coin with which modern American society can purchase both pluralism and a strong sense of community

Religiously Affiliated Law Schools: An Added Dimension

This address was given at the J. Reuben Clark Law Society Conference at Pepperdine University in Malibu, California, on February 16, 2007

Shirt-Tales: Clerking for Byron White

In honor of Byron White\u27s 25th anniversary as a Supreme Court Justice, his then-current and former clerks presented him with a T-shirt. Emblazoned on the shirt were short, usually one-line, statements expressing the clerks’ thoughts about the Justice, his career, and their experiences as clerks. The melange of brief messages conveys much about the relationship between Justice White and those who were privileged to work as his clerks. It also provides meaningful insights into the clerkship experience, as well as into the nature of the man who defined the experience by the force of his personality