Perry v. Schwarzenegger and the Slippery Slope

As just about everyone knows, yesterday a Northern District of California judge struck down California’s Proposition 8 as unconstitutional. There has been a tremendous amount of blog commentary on this already, much of it worth reading. (See Orin Kerr (here and here), Dave Hoffman, Eugene Volokh, Dale Carpenter, Howard Wasserman, Rick Hasen.) The one issue I want to comment on is what Perry means for the future of the constitutional treatment of same-sex marriages.

Many advocates for legal recognition of same-sex marriage are deeply worried by Perry. Dale Carpenter, for example, is concerned that the breadth of the arguments considered in Perry could lead to a sharply negative precedent if the case is reversed on appeal. Those fears are legitimate. An Equal Protection or Due Process argument mandating equal treatment for low-status individuals is what might be called “a nuclear bomb of a legal theory” — it applies everywhere, all at once, and obliterates legal distinctions meant to enforce low social status. The same applies, to a lesser extent, to arguments that the Full Faith and Credit Clause mandates recognition of valid same-sex marriages by every other state in the union. Courts might be hesitant to, so to speak, stop worrying and learn to love the bomb. Marched to the precipice too quickly, they might find some way to pull back from the brink.

If that happens, and if American society continues to develop tolerance for same-sex couples, will we be locked into sub-optimal constitutional doctrine? Not entirely. As I argue in my forthcoming article on this subject (in the Alabama Law Review), there is an escape valve.

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Best of the Blogs

Con law, con law everywhere. Randy Barnett and Jack Balkin continued their debate over the constitutionality of the individual insurance mandate of the health care reform law. Barnett argued on Sunday that the Obama administration’s move to defend the mandate as a tax indicated its assessment that the Commerce Clause might not be sufficient, thus refuting those who dismissed the Commerce Clause challenge as frivolous. Balkin responded that it just shows government attorneys being good lawyers by piling on every argument they can think of, and that what’s really going on here is an attempt to turn back the clock on the cultural-legal shift that accompanied the New Deal. (See Josh Blackman for more on Balkin’s argument.) Barnett replies that if he’s making an “off-the-wall” argument, he’s got 21 state Attorney Generals with him, and that the truly unprecedented argument is “[t]he claim that Congress may require any person in the US to do anything it deems to be in the public interest or pay a fine or penalty to the IRS.”

That wasn’t the only New Deal flashback this week.

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The Unsolved Mysteries of “Unsolved Mysteries”

(Part 2 of 2) I fully expect that we will get some resolution to several important plot threads in Lost’s finale tonight, particularly matters that have been developed over the last season and Season 5’s finale: what “sideways world” is, what Desmond is up to, how MIB is going to be defeated, what happens to the remaining main characters, what Jack’s nuclear bomb explosion did, and perhaps more about what the Island is/does. The head writers have said that they don’t intend a Sopranos-style fade to black. Whether the resolution is fulfilling or not is a separate issue, but my guess is that I’ll like it.

But I also expect, just because there is limited time, that several key elements of the plot from past seasons are going to be simply dropped. I don’t mean comparatively trivial items like why Libby was in Hurley’s mental institution or where the polar bears came from. I mean crucial components of the plot from one or more seasons are going to get left behind like jettisoned cargo. Here’s my top 4.

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