Diversity Readings Related to First-Year Courses

This guide is part of a series of guides with readings about issues of race, class, gender, sexuality, and disability in traditional first-year courses.

Note: The aspects of constitutional law covered in upper-level courses such as Equal Protection and the First Amendment often deal with race, class, sex, and sexuality. Including books and articles on those topics would overwhelm this reading list. This list focuses on topics typically covered in the first-year course: the structures of government and the processes of constitutional adjudication.

Gregory Ablavsky, The Savage Constitution, 63 Duke L.J. 999-1089 (2014), journal website

Conventional histories of the Constitution largely omit Natives. This Article challenges this absence and argues that Indian affairs played a key role in the Constitution’s creation, drafting, and ratification. 

George Anastaplo, 'Racism,' Political Correctness, and Constitutional Law: A Law School Case Study, 42 S. Dak. L. Rev. 108-64 (1997), HeinOnline.

In the fall of 1995, students in a meeting complained of allegedly racist remarks by Prof. Anastaplo in his Constitutional Law class. Over the next several months, he discussed the issue in lectures to his students and memos to his colleagues. This law review article reproduces those documents.

Frances Lee Ansley, Race and the Core Curriculum in Legal Education, 79 Cal. L. Rev. 1512-97 (1991), HeinOnline.

For Property, includes roots of title in the New World (pp. 1521-23) and slavery (pp. 1523-26). Race and the constitution is discussed at 1539-54.

Anthony E. Cook, The Temptation and Fall of Original Understanding, 39 Duke L.J. 1163 (1990) (reviewing Robert H. Bork, The Tempting of America: The Political Seduction of the Law (1989)), journal site

Abstract (from Delgado & Stefancic, Critical Race Theory: An Annotated Bibliography):  Explains why the version of historicist judicial philosophy embraced by Robert Bork's conception of original understanding is an impoverished approach to constitutional interpretation. Argues further that Bork's insistence on a color-blind Constitution silences the very voices who must be heard -- those of African-Americans, whom the Thirteenth, Fourteenth, and Fifteenth Amendments were designed to protect.

Cheryl Hanna, Gender as a Core Value in Teaching Constitutional Law, 36 Okla. City U. L. Rev. 513-24 (2011), HeinOnline

Randall Kennedy, Afro-American Faith in the Civil Religion; Or, Yes, I Would Sign the Constitution, 29 Wm. & Mary L. Rev. 163-68 (1987), HeinOnline

Howard Hogan et al., Projecting Diversity: The Methods, Results, Assumptions and Limitations of the U.S. Census Bureau's Population Projections, 117 W. Va. L. Rev. 1080 (2015), HeinOnline

Patricia Palacios Paredes, Note, Latinos and the Census: Responding to the Race Question, 74 Geo. Wash. L. Rev. 146 (2005), HeinOnline

Although race is often viewed as an immutable characteristic, the experience of Latinos in the United States illustrates the fluidity of race and the possibility of redefinition over time. Contrary to historical understanding, most scholars today agree that race lacks a biological basis. Instead, people created race. Despite its dubious reality, however, racial classification has always been, and continues to be, a hallmark of the United States census. Although the census has always asked respondents to identify their race, racial classification has never been a simple task, particularly with the influx of Latinos into the United States. The United States does not view Latinos as a racial group, but rather as an ethnicity, with individuals belonging to any race. As such, the United States census asks respondents if they are Hispanic or Latino and asks separately to what racial category they belong. The question of racial classification might be simple if race were biological, but because it is rooted in social thinking, many Latinos do not classify themselves in the United States' white-black binary structure.  In 2000, about half of Latinos identified themselves as white, while the other half selected the "other race" category and wrote in "Latino."

. . .

Part I of this Note addresses the existence of race and ethnicity, and introduces the notion of racial fluidity. Part II examines the importance of the United States census in shaping racial identity. Part III provides a historical outline of the census's race and ethnicity questions. Parts IV and V explain that Latinos have traditionally identified as white or "other" and continue to do so today. If the Census Bureau eliminates the category of "other," Latinos will effectively be raced white. Finally, Part VI examines the implication of racing Latinos white, particularly with respect to civil and voting rights, and sets out my proposal to ensure that Latinos, whether perceived as white or nonwhite, maintain the civil rights protections that are necessary to address historical and present discrimination.

pp. 146-47, 149 (footnotes omitted)

Michael Schoeppner, Legitimating Quarantine: Moral Contagions, the Commerce Clause, and the Limits of Gibbons v. Ogden, 17 J. S. Legal Hist. 81 (2009), HeinOnline (discussing Gibbon v. Ogden in the context of Southern state "laws limiting the ingress of 'colored seamen' into their jurisdictions").

Marybeth Herald & Julie A. Greenberg, You Can't Take It With You: Constitutional Consequences of Interstate Gender-Identity Rulings, 80 Wash. L. Rev. 819-885 (2005) SSRN, HeinOnline

Abstract: Contradictory approaches to defining male and female can create bizarre and confusing results as transsex persons cross state lines and find that their legal sex changes according to the laws of a given jurisdiction. Recent U.S. decisions establishing a person's legal sex have adopted a kaleidoscope of approaches that range from the absurd (a man must be able to fertilize ovum and beget offspring, while women must produce ova and bear offspring), to the religious (gender is immutably fixed by our Creator at birth), to the scientific (gender itself is a fact that may be established by medical and other evidence). Under current laws and state court rulings, a male-to-female transsex person is legally a woman in approximately one-half of the states and legally a man in the other one-half of the states. This article discusses the constitutional implications of the varied approaches to determining a person's legal sex. It concludes that states that refuse to recognize an amended birth certificate from a sister state violate principles of full faith and credit and unconstitutionally infringe upon the right to travel under the dormant Commerce Clause. In addition, when states impose sex tests that are based on gender stereotypes and force people to live as the sex that conflicts with their self-identified sex, they violate the Fourteenth Amendment's equal protection and substantive due process mandates.

Joseph R. Palmore, Note, The Not-So-Strange Career of Interstate Jim Crow: Race, Transportation, and the Dormant Commerce Clause, 1878-1946, 83 Va. L. Rev. 1773-1817 (1997), LexisNexis

Akhil Reed Amar, Race, Religion, Gender, and Interstate Federalism: Some Notes from History, 16 Quinnipiac L. Rev. 19 (1996) LexisNexis

Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Race, Federalism, and Voting Rights, 2015 U. Chi. Legal F. 152 (2015), HeinOnline

Scott W. Gaylord & Thomas J. Molony, Individual Rights, Federalism, and the National Battle over Bathroom Access, 95 N.C. L. Rev. 1734 (2017), HeinOnline

Paul Finkelman, Race, Federalism, and Diplomacy: The Gentlemen's Agreement a Century Later, 56 Osaka U. L. Rev. 1-30 (2009), SSRN

Abstract: 
In 1908 the governments of Japan and the United States completed the final negotiations on an informal, non-binding "Gentlemen's Agreement" to limit Japanese immigration to the United States. The one hundredth anniversary of the final "Gentlemen's Agreement" in 2008 provides an appropriate moment to revisit these Agreements and reconsider their place in history.

Barbara Holden-Smith, Lynching, Federalism, and the Intersection of Race and Gender in the Progressive Era, 8 Yale J.L. & Feminism 31 (1996) HeinOnline

Samuel P. Jordan, Federalism, Democracy, and the Challenge of Ferguson, 59 St. Louis U. L.J. 1116 (2015), HeinOnline

Calvin Massey, The Current Legal Framework of Sex/Gender Discrimination Law: Congressional Power to Regulate Sex Discrimination: The Effect of the Supreme Court's "New Federalism", 55 Me. L. Rev. 63 (2003) HeinOnline

Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947 (2002), SSRN, HeinOnline

Abstract: 
Americans debated questions of women's citizenship for over a half century before adopting the Nineteenth Amendment, but neither the Amendment nor its history now plays any role in modern interpretations of the Constitution. Instead, the Supreme Court addresses questions of women's citizenship under the Fourteenth Amendment, reasoning about problems of sex discrimination by analogy to problems of race discrimination. This framework denies sex discrimination law a foundation in constitutional history, and, in so doing, weakens its apprehension of issues affecting women's status and its authority to address them. The debates over woman suffrage that began with the drafting of the Fourteenth Amendment and concluded with the ratification of the Nineteenth Amendment are plainly relevant to understanding how the guarantee of equal citizenship applies to women. At the founding and for generations thereafter, Americans believed women did not need the vote because they were represented in the state through male heads of household. By adopting the Nineteenth Amendment, Americans were breaking with traditional conceptions of the family that were rooted in coverture, as well as with understandings of federalism that placed family relations beyond the reach of the national government. The debates over the Nineteenth Amendment thus memorialize the nation's decision to repudiate traditional conceptions of the family that have shaped women's status in public as well as private law and that are inconsistent with equal citizenship in a democratic polity. If concepts of sex discrimination were informed by the experience and deliberative choices of past generations of Americans, equal protection doctrine would better recognize forms of discrimination historically directed at women; and the law of federalism would take a more critical approach to claims that the family is a local institution, beyond the reach of the national government. The article closes by considering how this new, historically grounded approach to questions of sex discrimination under Sections One and Five of the Fourteenth Amendment would enable a different constitutional analysis of the portions of the Violence Against Women Act struck down in United States v. Morrison.

Peter Wallenstein, Law and the Boundaries of Place and Race in Interracial Marriage: Interstate Comity, Racial Identity, and Miscegenation Laws in North Carolina, South Carolina, and Virginia, 1860s-1960s, 32 Akron L. Rev. 557 (1999), HeinOnline

 

 

Graphic: map of United States showing circuit court and district court boundaries, from United States Courts website

Brian Bix, State of the Union: the States' Interest in the Marital Status of Their Citizens, 55 U. Miami L. Rev. 1 (2000), HeinOnline, SSRN

Abstract: 
With the prominence of arguments for and against same-sex marriage and covenant marriage, the state regulation of marriage has again assumed prominence.

The claim, prominent in both judicial opinions and commentaries, that states have a substantial interest in the marital status of their citizens, reflects a usually unstated and unargued-for view of federalism. Additionally, the claim runs up against certain constitutional provisions (e.g., the right to interstate travel and the right to privacy), certain pieces of federal legislation, and the reality of a mobile society, which combine to undermine the ability of individual states to regulate marriage, as well as the justifications for their doing so. The paper also considers whether it is coherent for states to claim a substantial interest in their citizens' being married, while simultaneously making exit from marriage easy (through no-fault divorce) and creating no significant disincentives for cohabitation or raising children outside of marriage.

Jennifer Gerarda Brown, Competitive Federalism and the Legislative Incentives to Recognize Same-Sex Marriage, 68 S. Cal. L. Rev. 745 (1995), HeinOnline

Stanley E. Cox, Nine Questions about Same-Sex Marriage Conflicts, 40 New Eng. L. Rev. 361-408 (2006), HeinOnline, LexisNexis, Westlaw

Abstract (from Sexual Orientation and the Law bibliography): 
This eminently readable article articulates the conflict of laws issues raised by same-sex marriage. Included are discussions of the obligations of states to respect other states' laws or judgments, and whether DOMA violates the Full Faith and Credit Clause.

Matthew L. M. Fletcher, Same Sex Marriage, Indian Tribes, and the Constitution, 61 U. Miami L. Rev. 53-85 (2006), SSRN, HeinOnline

Abstract: 
This Article explores the impact of a same-sex marriage amendment on the place of Indian tribes in the federal constitution. A same-sex marriage amendment, depending on the text, might serve to incorporate Indian tribes into the federal union as the third sovereign. The Constitution has not been amended to incorporate Indian tribes into the federal union, rendering their place in Our Federalism uncertain and unpredictable. A same-sex marriage amendment that applies to limit or expand tribal authority to recognize or authorize same-sex marriage could constitute an implicit recognition of Indian tribes as the third sovereign in the American system of federalism. Even an amendment that excludes mention of Indian tribes may have something to say about Indian tribes as the third sovereign.

Heather K. Gerken, Windor's Mad Genius: The Interlocking Gears of Rights and Structure, 95 B.U. L. Rev. 614 (2015), HeinOnline

Spencer J. Jenkins, 'Till Congress Do Us Part: The Marriage Protection Act, Federal Court-Stripping, and Same-Sex Marriage, 40 New Eng. L. Rev. 619-661 (2006), HeinOnline, LexisNexis, Westlaw

Abstract (from Sexual Orientation and the Law bibliography): 
The Marriage Protection Act of 2004 (MPA), or House Bill 3313, would strip the federal courts of jurisdiction over same-sex marriage cases. This article provides some history of the MPA. It examines the federal courts' powers of judicial review, and Congress's power over the courts. It concludes that attempts to curtail judicial review through the MPA would be unconstitutional. Equal protection, full faith and credit, and due process analyses are all discussed.

Nancy J. Knauer, Same-Sex Marriage and Federalism, 17 Temp. Pol. & Civ. Rts. L. Rev. 421 (2008), HeinOnline, LexisNexis, SSRN, Westlaw

Abstract (from SSRN): 
The increasing willingness of states to recognize same-sex relationships illustrates the central theme of this Symposium: federalism provides states the freedom to experiment with novel solutions to pressing social issues. The development of progressive policies seems to bear out Justice Brandeis' optimistic vision of federalism where "a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."

With respect to same-sex relationships, however, state level reform efforts have not been uniformly progressive. To the contrary, the vast majority of these efforts prohibit the legal recognition of same-sex relationships and, in many instances, have been downright hostile to same-sex couples and their families. This widespread anti-marriage and anti-recognition sentiment should serve as a valuable reminder that there is nothing inherently progressive about state-level attempts to address social issues. To the contrary, the mantle of federalism has been used to justify some of this country's most ignoble legal practices, specifically the Jim Crow laws. Federalism is an institutional alternative; it is not necessarily a political ideology. Federalism can facilitate both a progressive and a conservative impulse, and, in the case of same-sex relationships it does both.

The Essay makes three observations concerning the current legal status of same-sex relationships and the inadequacy of state and local reform measures to secure broad based minority rights. Part I of this Essay maps the current legal status of same-sex relationships and notes that, despite considerable gains, state level reform has been designed largely to deny legal recognition for same-sex couples. Part II establishes that federalism offers, at best, an imperfect institutional choice for those seeking broad based minority rights because state level protections currently are not portable and are particularly vulnerable to being overturned through majoritarian measures such as citizens' initiatives.

Finally, Part III explores the human cost of the existing lack of uniformity among the states regarding the recognition of same-sex relationships. The confusing and conflicting status of same-sex relationships weighs heavily on same-sex couples. Four out of five same-sex couples live in jurisdictions without relationship protection. These partners remain legal strangers to one another with no reliable way to designate their partners as family. The one in five couples who reside in a jurisdiction with relationship recognition enjoy a certain level of protection within the borders of their own state, but must travel at their own risk.

Abstract (from Sexual Orientation and the Law bibliography): 
All too often the debate over same-sex marriage takes on an erudite, disinterested intellectual tone as constitutional issues are pondered, social trends reviewed, and judicial opinions summarized. Knauer, a frequent writer on the topic, does some of this in her brief article about the shortcomings of federalism for this topic. The eye is drawn, however, to the concluding section which points out the real human costs of the disparate state approaches concerning gay and lesbian relationships.

Andrew Koppelman, The Difference the Mini-DOMAs Make, 38 Loy. U. Chi. L. J. 265-278 (2007), LexisNexis, Westlaw, HeinOnline

Abstract (from Sexual Orientation and the Law bibliography):  
This author examines some issues that arise under various state "defense of marriage" laws. He identifies a number of issues that aren't generally covered by those laws, such as persons migrating to the state, individuals attempting to avoid obligations incurred in other states, and litigation related to children of same-sex marriages who are now residing in the state. A number of attempts to deal with those situations, either by denying "contractual rights" to same-sex couples, by refusing to enforce judgments from other states related to same-sex unions, or by "blanket nonrecognition," are most likely unconstitutional, because they either violate the Equal Protection or Full Faith and Credit clauses of the U.S. Constitution.

Marc R. Poirier, Same-Sex Marriage, Identity Processes, and the Kulturkampf: Why Federalism Is Not the Main Event, 17 Temp. Pol. & Civ. Rts. L. Rev. 387 (2008), HeinOnline, LexisNexis, SSRN, Westlaw

Abstract (from SSRN): 
Federalism is implicated in an important subset of arguments around issues of legal treatment of same sex marriage and other same sex unions. But federalism is not the main event. It fails to account for or address the goals of strategizing around the deep cultural conflict of which the struggle for marriage equality is a part. This essay labels "experimental federalism" one traditional justification for federalism as the laboratory of the states; and it labels "resource matching federalism" another traditional justification that seeks to find the best level of government to manage specific resources. The Kulturkampf over marriage, gender, sexuality and family is neither of these types of federalism. It is instead "beachhead federalism," in which deeply divided partisans seek to compel the entire polity to choose their approach from the outset, and a state-by-state patchwork is the contingent result of differential cultural and political forces, rather than of any rational, deliberate and stable choice of governmental level.

To account for and strategize the current Kulturkampf, we must look elsewhere. The essay argues that the deep cultural division over marriage fundamentally is driven by disagreement over gender and sexual identity in individuals and gender and sexual identity as shared and replicated tradition. Gender and sexual identity depend on microperformances. Microperformances are either observed and contested in specific local places, or are visible and contested in an ageographic discursive space. These processes are at once very small scale and very large scale. But neither local place nor disembodied, media-dependent discursive space is fundamentally at the scale of state-by-state and state-local jurisdictional differentiation, which is at the center of standard discussions of federalism and localism. In sum, federalism raises tactical issues of considerable importance, but is not the main event, because the Kulturkampf is about microperformances of identity and their shared meaning.

Abstract (from Sexual Orientation and the Law bibliography): 
Rather than a legitimate experiment in the laboratories of the states, federalism offers instead a stage of historical accident for the thrashing out of the same-sex marriage controversy. Poirier frames the struggle instead as a "kulturkampf," or culture war, a term invoked by U. S. Supreme Court Justice Scalia in his Romer v. Evans dissent (517 U.S. 620, 636 (1996)). The error of the first view is that the state is the proper level of analysis at which to frame the central arguments at issue in marriage adjudication. In contrast, Poirier points out that the "core dynamics are either local and place-based, or are universal and aterritorial." Resort to federalism is therefore "tactical" rather than central, a "beachhead" attempt to make opportunistic arguments. "Where Kulturkampf and cultural identity are concerned, federalism simply is not the main event."

Cynthia M. Reed, When Love, Comity, and Justice Conquer Borders: INS Recognition of Same-Sex Marriage, 28 Colum. Human Rights L. Rev. 97- 134 (1996), HeinOnline

Jeffrey L. Rensberger, Interstate Pluralism: The Role of Federalism in the Same-Sex Marriage Debate, 2008 B.Y.U.L. Rev. 1703, SSRN

Abstract: 
This paper discusses the role of federalism in the debate over interstate recognition of same-sex marriages. It examines and rejects as simplistic the argument that the role of full faith and credit is to promote greater national uniformity. Instead, full faith and credit requires a balancing between the policy of uniformity and its counterweight, state autonomy and particularism (which is termed interstate pluralism). The paper identifies how interstate pluralism is reflected in a wide variety of ways in the law. It then seeks to show the benefits to the individual of having different legal communities to choose from. It then uses extensive economic and demographic data to demonstrate just how pluralistic are states are. It concludes that state should generally apply forum law to decide whether to recognize same-sex marriages.

Gennaro Savastano, Comment, Comity of Errors: Foreign Same-sex Marriages in New York, 24 Touro L. Rev. 199 - 221 (2008), HeinOnline

Joan E. Schaffner, The Federal Marriage Amendment: To Protect the Sanctity of Marriage or Destroy Constitutional Democracy?, 54 Am. U. L. Rev. 1487- (2005), SSRN, HeinOnline

For the several years, primarily as a political ploy, the President and Republican Congress, proposed an amendment to the US Constitution to prohibit marriage between people of the same sex - the Federal Marriage Amendment. This article analyzed this proposed amendment in light of the constitutional principles that govern our society, individual rights, federalism, separation of powers, and judicial review. The article concludes that the FMA is itself constitutionally suspect and is more destructive, on balance, of the basic democratic constitutional principles than any amendment previously adopted or proposed. The amendment violates every tenet of constitutional democracy by: (1) expressly limiting the due process and equality interests of a minority group; (2) precluding the Supreme Court from fulfilling its role as the protector of individual rights; and, (3) foreclosing the states from experimenting with progressive laws designed to promote equality within an area uniquely reserved to the state governments.

Linda J. Silberman, Can the Island of Hawaii Bind the World? A Comment on Same-Sex Marriage and Federalism Values, 16 Quinnipiac L. Rev. 191 (1996), LexisNexis

Gary J. Simson, Beyond Interstate Recognition in the Same-Sex Marriage Debate, 40 U.C. Davis L. Rev. 313-383 (2006), LexisNexis, NELLCO (free), Westlaw

Abstract (from Sexual Orientation and the Law bibliography): 
The author begins with a brief discussion of the federal Defense of Marriage Act, and the Full Faith and Credit Clause of the U.S. Constitution, and finds that neither is dispositive on the issue of whether a same-sex marriage in one state must be recognized in another. He then analyzes the New York state case In re May's Estate [148 N.E.2d 4 (N.Y. 1953)] to see whether a choice-of-law argument might help proponents of same-sex marriage to advance their claims. While the decision in May's Estate would seem to do so, the author finds the case to have been improperly decided. He concludes, however, that the Equal Protection, Due Process, and Establishment Clauses of the U.S. Constitution would require a state to recognize same-sex marriages performed in another state.

Lynn D. Wardle, From Slavery to Same-Sex Marriage: Comity Versus Public Policy in Inter-jurisdictional Recognition of Controversial Domestic Relations, 2008 B.Y.U.L. Rev. 1855- ,HeinOnline

Rhonda Wasserman, Are You Still My Mother?: Interstate Recognition of Adoptions by Gays and Lesbians, 58 Am. U. L. Rev. 1-83 (2008), HeinOnline, LexisNexis, Selected Works (free), Westlaw

Abstract (from Sexual Orientation and the Law bibliography): 
Are states required by the U.S. Constitution to recognize an adoption degree in another state regardless of the parents' sexual orientation. At least one state—Oklahoma—and one high-profile commentator—Lynn Wardle—say no, that, in the latter's words, "in many situations nonrecognition of lesbigay adoption decrees would be proper and permissible." Wasserman examines four different rationales to support such a conclusion, finding all to be flawed. Wardle's antigay posture, she argues, is contrary to "both Supreme Court precedent and an overriding policy favoring permanency in parent-child relationships."

Adam Weiss, Federalism and the Gay Family: Free Movement of Same-Sex Couples in the United States and the European Union, 41 Colum. J. L. & Soc. Probs. 81- (2007), HeinOnline

Ronald S. Sullivan Jr., Classical Racialism, Justice Story, and Margaret Morgan's Journey from Freedom to Slavery: The Story of Prigg v. Pennsylvania, in Race Law Stories 59-87 (Rachel F. Moran & Devon W. Carbado eds., 2008), KF4755 .R33 2008, Reference Area

Pratheepan Gulasekaram & S. Karthick Ramakrishnan, The President and Immigration Federalism, 68 Fla. L. Rev. 178 (2016), HeinOnline

Erika Lee, Birthright Citizenship, Immigration, and the U.S. Constitution: The Story of United States v. Wong Kim Ark, in Race Law Stories 90-109 (Rachel F. Moran & Devon W. Carbado eds., 2008), KF4755 .R33 2008, Reference Area

Janel Thamkul, The Plenary Power-Shaped Hole in the Core Constitutional Law Curriculum: Exclusion, Unequal Protection, and American National Identity, 96 Cal. L. Rev. 553 (2008), HeinOnline

[T]wo key constitutional cases involving immigration and citizenship, Chae Chan Ping v. United States and Fong Yue Ting v. United States, profoundly affect the development of the American national identity, but are notably absent from the legal curriculum. These two cases are the roots of Congress's plenary power over immigration, which maintains that "the power of Congress over the admission of aliens to this country is absolute."' This plenary power has effectively immunized the federal government's substantive immigration decisions from judicial scrutiny.

p. 555 (citations omitted)

James Y. Xi, Refugee Resettlement Federalism, 69 Stan. L. Rev. 1236 (2017), HeinOnline

Matthew L. M. Fletcher, Same Sex Marriage, Indian Tribes, and the Constitution, 61 U. Miami L. Rev. 53-85 (2006), SSRN, HeinOnline

Abstract: 
This Article explores the impact of a same-sex marriage amendment on the place of Indian tribes in the federal constitution. A same-sex marriage amendment, depending on the text, might serve to incorporate Indian tribes into the federal union as the third sovereign. The Constitution has not been amended to incorporate Indian tribes into the federal union, rendering their place in Our Federalism uncertain and unpredictable. A same-sex marriage amendment that applies to limit or expand tribal authority to recognize or authorize same-sex marriage could constitute an implicit recognition of Indian tribes as the third sovereign in the American system of federalism. Even an amendment that excludes mention of Indian tribes may have something to say about Indian tribes as the third sovereign.

Rennard Strickland, The Tribal Struggle for Indian Sovereignty: The Story of the Cherokee Cases, in Race Law Stories 37-57 (Rachel F. Moran & Devon W. Carbado eds., 2008), KF4755.R33 2008 at Reference Area

Discusses Cherokee Nation v. Georgia, 30 U.S. 1 (1831) and Worcester v. Georgia, 31 U.S. 515 (1832).