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BUSCHING-KAPOCHUNAS FINAL

2/4/2009 1:59:19 AM

2008]

TIMOTHY’S LAW

635

federal government.248 Therefore, they should be able to freely protect those individuals without intrusion from the federal government. Currently, if there were such justified limitations on federal power, the states would be free to legislate without concerns regarding ERISA preemption of states’ employee benefits plans statutes and preemption of damages under such statutes. 249

When progressive reform movements start at the state level, and then subsequently generate national support, they are less likely to be resisted at the national level.250 This is because these movements create changes that are accepted over time, becoming societal norms; this change and eventual acceptance is much different than “top down changes imposed by Congress.”251

One example of this kind of state reform movement is the gay rights movement. One scholar points out that there are several urban centers, in certain areas of the country, which have attracted many gay men and lesbian women because they offer stronger protection of sexual

minorities’

rights.252

By

converging

their

specific

minority

group

in

concentrated

areas,

they

have

become

more

influential

and

have

been

able to lobby for favorable enacted at the national level.

legislation

253

which

would

otherwise

not

be

The history of the Timothy’s Law legislation is similar and constitutes evidence of this theory of progressivism. Timothy’s Law was a direct result of the drive and motivation of the O’Clairs after Timothy O’Clair’s death.254 Because of the support that the mental health parity issue received, the New York Legislature responded and Timothy’s Law legislation was drafted.255 Although this legislation took several years to pass in the Senate, it finally passed in a special Congressional session

248. Id. at 1380 (citations omitted) (arguing that state governments tend to be more progressive because of the strong tradition of democratic activism and explaining that there is a greater opportunity to interact and participate in state government because of the smaller political communities, thereby making those governments more accountable to the people they serve). Id. at 1379-80; see also Robert Justin Lipkin, Foreward to Symposium, Is American Progressive Constitutionalism Dead?, 4 WIDENER L. SYMP. J. i, at iii-v (1999).

  • 249.

    Id. at 1376.

  • 250.

    Id. at 1380 (citations omitted).

  • 251.

    Id.

  • 252.

    See id. at 1378-79 (citing Steven Clark, Progressive Federalism? A Gay Liberationist

Perspective, 66 ALB. L. REV. 719, 722 (2003)). 253. See id. at 1379 (citing Mark C

. Gordon, Differing Paradigms, Similar Flaws:

Constructing a New Approach to Federalism in Congress and the Court, 14 YALE L. & POLY REV. 187, 218 (1996)).

  • 254.

    Timothy’s Law, supra note 1.

  • 255.

    See id.

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