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In the generation after World War 2 (1945-69), homosexual intimacy was a serious crime in Colorado and other states, as was any kind of "lewdness" or homosexual solicitation; people suspected of being homosexual were routinely dismissed from federal, state, and private employment.' In the generation after Stonewall (1969-97), Colorado's legislature repealed the state's consensual sodomy law, and the governor by executive order prohibited state employment discrimination on the basis of sexual orientation. The cities of Aspen, Boulder, and Denver enacted ordinances prohibiting private sexual orientation discrimination in housing, employment, education, public accommodations, and health and welfare services. In 1992, the voters of Colorado adopted the following amendment to the state constitution: No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. The United States Supreme Court struck down Amendment in Romer v. Evans based on its conflict with the Equal Protection Clause. Writing for himself and two other justices, Justice Scalia dissented, starting with the premise that "[t]he Court has mistaken a Kulturkampf for a fit of spite," and arguing at length that the Court's opinion was inconsistent with both precedent and the ordinary operation of the democratic process. Justice Scalia was using the term "Kulturkampf' out of context. Kulturkampf, a German word for "culture war" or "struggle," was a nineteenth century campaign by Bismarck's German Empire to domesticate the Roman Catholic ...

William Eskridge, a Yale law professor chronicles the Vermont law which legalised civil unions - distinct from marriage - for same sex couples.

We appreciate Dan Carpenter's thoughtful assessment of our book and are eager to respond to his reflections about the political theory of the republic of statutes. He is right that we did not discuss some highly entrenched statutory schemes that might well deserve small-c constitutional status as superstatutes. Although we do treat the Defense of Marriage Act as a superstatute in our chapter on the antihomosexual constitution and its disentrenchment, we might have included a chapter on the Food, Drug and Cosmetics Act of 1938 (along with the many subsequent amendments that helped shape the drug enforcement regime we have today) if we had as many original things to say about the Food and Drug Administration's (FDA's) administrative constitutionalism as Carpenter did in his book. It would have been a big chapter, too.

Federalism is sometimes said to be an unstable halfway house between unified national government and an alliance among separate the state, according to which sovereignty must ultimately be indivisible: either national institutions retain the authority to make decisions or they do not. Genuine federal arrangements are unstable under this perspective. The notion of indivisible sovereignty has a powerful hold on our view of politics, but we think it is limited, most importantly by its conflation of the question of where ultimate authority resides with the question of where state power is actually exerted. While the answer to the first question is obviously significant, economic and sociological conceptions of politics suggest that the answer to the second may tell much more about the nature of a polity. Perhaps the main attraction of federalism in a country riven by internal differences is that it permits foundational issues like the location of sovereignty to be finessed, so that internal divisions can be accommodated in ad hoc, practical ways. It permits people who may differ greatly in their conception of a good public life to develop and maintain their own separate communities within the context of a larger and more powerful political economy, without requiring them to surrender their separate identities.' Echoing Rawls, we view federalism as a political rather than a metaphysical solution to the formation and maintenance of a state.