Bench Memos

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Re: Response to Randy Barnett on the Chief’s Excellent Hypothetical


As Orin Kerr and I did, Nicholas Quinn Rosenkranz weighs in against Randy Barnett’s position that it is somehow unthinkable that “one can be married under federal law and unmarried under state law.” As Rosenkranz, author of the law-review article “Federal Rules of Statutory Interpretation,” explains, “It is, in fact, an utterly commonplace feature of our federalism that the exact same word may mean different things for purposes of state law and federal law.”

Rosenkranz, who, like Kerr, is a former law clerk to Justice Kennedy, also writes:

Justice Kennedy has strong and sure federalism instincts. When he considers the radical and illogical implications of this particular “federalism argument,” which actually turns federalism on its head, I believe he will not [accept the federalism argument against DOMA].

Another former Kennedy clerk, Michael Dorf, in a comment on his own post pondering why Solicitor General Verrilli didn’t embrace the federalism argument against DOMA, agrees that the argument “should fail.”


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