Baker V. State and the Promise of the New Judicial Federalism

Abstract

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution's Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores the ways the Vermont justices employed doctrinal threads from these authorities, analyzes and critiques perceived shortcomings in the reasoning of each opinion, and then addresses the important contribution that independent state constitutional jurisprudence can make to constitutional discourse. The Article further encourages law schools to implement curricular changes that will expose students to state constitutional law.

Keywords: Baker v. State, Vermont, Common Benefits Clause, same-sex marriage, New Judicial Federalism, state constitutional law, constitutional scholarship, constitutional jurisprudence, law school curriculum