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I. Introduction 412 II. The Debate 413 A. Argument for Marriage 413 B. Argument Against Marriage 414 C. A Hindsight View 415 III. Pre-Windsor Tax Landscape 416 IV. Post-Windsor Surprise [...], Before there was a culture war in the United States over same-sex marriage, there was a battle between opponents and proponents of same-sex marriage within the LGBTQ+ community. Some opposed same-sex marriage because of the long patriarchal history of marriage and the more consequential need to bridge the economic and privilege gap between the married and the unmarried. Others, in contrast, saw marriage as a civil rights issue and lauded the transformative potential of same-sex marriage, contending that it could upset the patriarchal nature of marriage and help to refashion marriage into something new and better. This Article looks back at that debate--and explores the complex relationship between legal and social change--through the prism of the federal tax definition of marriage before and after the landmark decisions in United States v. Windsor and Obergefel v. Hodges. Through an examination of the Internal Revenue Service's shifting positions regarding the recognition of civil unions and domestic partnerships, this Article explores how and why the promised transformative potential of same-sex marriage has failed to be realized in this influential area of law.

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the "apex" court in the federal judicial system, and so to relate hierarchically to [...]

IV. Diverging Votes The analysis above suggests that Justice Kennedy's jurisprudence is skeptical of equal protection claims brought by women and people of color but generally supportive of sexual-orientation-based claims. [...]

Table of Contents Introduction I. Windsor and Obergefell II. The Traditional Equal Protection Model III. LGBT Exceptionalism A. Diverging Doctrinal Rules 1. The suspect classification requirement 2. Selective application of [...], During the last thirty years, the Supreme Court has steadily diminished the vigor of the Equal Protection Clause. It has turned away people of color who protest systems such as racialized mass incarceration because their oppression does not take the form of a "racial classification." It has diluted the protections of intermediate scrutiny in gender discrimination and abortion cases. And it has turned its back on groups who once benefitted from "animus" review, including people with disabilities and poor people. Meanwhile, the only site of vitality in equal protection jurisprudence is the claims of lesbian, gay, bisexual, and transgender (LGBT) individuals. Yet the Court, writing opinions that are rarely in conversation with one another, has made no effort to justify this growing divide. I call attention to this reordered equal protection landscape, which contrasts sharply with the conventional understanding of equal protection tiers of scrutiny. Specifically, I identify three manifestations of LGBT exceptionalism, advantages that LGBT people (especially gays and lesbians) enjoy compared to virtually every other civil rights constituency: (1) the Court has rigidly used the concept of a "classification" as a gatekeeping device, but it has ignored this requirement in sexual orientation cases; (2) LGBT people can invoke animus, a standard that emerged from cases brought by people of color, poor people, and people with disabilities but that the Court no longer recognizes in such cases; and (3) sexual orientation cases leave open important questions, including the legal standard that would apply to remedial policies based on sexual orientation--quite unlike the Court's adverse resolution of these questions in race cases. The Supreme Court's recent Obergefell decision unveiled a uniquely capacious conception of animus, which indicates that sexual orientation is moving even further away from race

4. Lessons Learned: Erie as Regime Change Everything that modern lawyers think they know about Erie emerged years and decades after the fact. Erie's current meaning exists within an elaborate [...]

3. Living Precedentialism: Developmental Meaning This Part has thus far focused on originalist nineteenth-century materials from the time Swift was decided. As is true with statutes and constitutions, however, precedents' [...]

Scholars, judges, and lawyers have fought for decades over originalism, textualism, and "living" interpretation as though such questions arose exclusively with respect to statutes and constitutions. That is wrong. Some [...]

I. INTRODUCTION In 2013, the United States Supreme Court struck down section three of the Defense of Marriage Act (DOMA) in United States v. Windsor. (1) Since then, plaintiffs have [...]

ACT II. DOMA CHALLENGES IN CALIFORNIA AND MASSACHUSETTS. Scene 1. Senate Judiciary Committee Hearing Room, Dirksen Senate Office Building, Washington, D.C. On January 26, 2009--less than a week after taking [...]

[T]he Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them [...]

I. INTRODUCTION Following Windsor v. United States, (1) plaintiffs across the country challenged state same-sex marriage bans. To date, several district courts have struck down either state refusals to recognize [...]

INTRODUCTION I. THE MORAL JUSTIFICATIONS DEBATE SINCE LAWRENCE A. Implications of Lawrence for Moral Justifications B. Implications of Windsor for Moral Justifications C. A Word on Obergefell D. What Is [...], This Note evaluates the effects of United States v. Windsor on the legitimacy of moral justifications for legislation by examining the hypothetical case of polygamous prospective immigrants. Coupled with Lawrence v. Texas, its predecessor in reasoning, and now obergefell v. Hodges, its natural extension, Windsor signals the Supreme Court's willingness to strike legislation motivated by impermissible moral justifications. The Court neither defines the moral arguments to which it is opposed, however, nor specifies whether moral justification remains permissible in some legislative contexts. Recent instances of polygamous spouses seeking admission to the United States provide the foundation for a strong test case for the lingering viability of legislated morality. The polygamy bans contained in state public policy and federal immigration law originated in legislatures motivated in part by religious and other types of moral reasoning, at least some of which offends modern sensibilities. If the current Supreme Court were to hear an equal protection or substantive due process challenge to these bans, recent precedent suggests that the Court would apply heightened scrutiny based on a finding of apparent animus or a deeply rooted tradition, respectively. in response, the federal government could justify the continued existence of the polygamy bans in part on non-moral reasoning. Nevertheless, the legacy of their passage and the ongoing moral opprobrium of many Americans towards polygamy suggest that a Court adhering to its Windsor precedent would invalidate these bans for a violation of equal protection. The implicit dependence of the Windsor and Lawrence Courts on the 'emergent rights' of a minority has little parallel for polygamists, however, militating against any near-term decision in their favor, although not dispelling concerns that the Court has narrowed the historic role of religious and other moral justifications for legislation.

No. 12-307 In the Supreme Court of the United States United States of America, Petitioner, v. Edith Schlain Windsor and Bipartisan Legal Advisory Group of the United States House of [...]

II. DOMA Section 3 is unconstitutional. Justice Harlan famously said in his dissent in Plessy v. Ferguson that "the Constitution 'neither knows nor tolerates classes among citizens.'" 163 U.S. 537, [...]

There is really only one thing that I know for sure. No human being knows what life has in store for them. My client Edie Windsor surely didn't. As a [...]

Exploring how to apply lessons learned from the successful challenge to the federal Defense of Marriage Act (DOMA), not only to ongoing marriage equality work but also reproductive rights work, [...]

IV. RESULTS A. Initial Results The first model specification uses the question of agreement as the dependent variable: Overall, I agree with the Supreme Court's decision in this case. (173) [...]

Can the Supreme Court influence the public's reception of decisions vindicating rights in high-salience contexts, like same-sex marriage, by reasoning in one way over another? Will the people's disagreement with [...]

INTRODUCTION The question that was put to us is whether the widespread legalization of gay marriage, supported by the Supreme Court's decision in United States v. Windsor, (1) means that [...]

Abstract: Scholars and activists interested in racial justice have long been opposed to surrogacy arrangements, wherein a couple commissions a woman to become pregnant, give birth to a baby, and [...]

Abstract: Following the Supreme Court's decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any [...]

This Article offers a new perspective on the relationship between family and federalism by analyzing why the government--whether state or federal-recognizes family at all. The Article examines the current balance [...]

B. Ohio--December 23, 2013 and April 14, 2014 Right of Marriage Recognition Initially, the Southern District of Ohio dealt with the narrowest question posed following Windsor, must a state recognize [...]

J. Arkansas--May 9, 2014 Right to Marry Arkansas is one of the few state courts to opine on the constitutionality of same-sex marriage bans, and Judge Piazza conducted a careful [...]

I. INTRODUCTION The question proposed is whether traditional deference to state sovereignty and our historical national tradition of preference for heterosexual marriage may serve as a rational basis to permit [...]

I. INTRODUCTION II. HOLLINGSWORTH V PERRY AND UNITED STATES V. WINDSOR. WHAT REALLY HAPPENED? A. The Decision in Perry B. The Decision in Windsor C. The Basis for the Windsor [...]

UNITED STATES OF AMERICA, Petitioner. v. EDITH SCHLAIN WINDSOR, in her capacity as executor of the estate of THEA CLARA SPYER, et al., Respondents. On Writ Of Certiorari To The [...]

I. INTRODUCTION During the Supreme Court's 2012-13 term, the Court decided two cases involving legislation excluding same-sex couples from the institution of marriage: Perry v. Hollingsworthi (1) and Windsor v. [...]

(b) Arguments made in support of Windsor Many amici supporting Windsor offered arguments about why heightened scrutiny was the appropriate standard of judicial review by which to assess Section 3. [...]

7. Gender and Race Discrimination Versus Discrimination on the Basis of Sexual Orientation/Why Homosexuality is Not a Suspect Class Amici, as discussed, distinguished discrimination against homosexuals from race discrimination, arguing [...]

I. INTRODUCTION II. ROMER V. EVANS A. Amendment 2 B. The Legal Challenge to Amendment 2 in Colorado State Court 1. The Preliminary Injunction 2. Evans v. Romer (Evans I): [...]