Some Different Thoughts on the Iowa Supreme Court Marriage Decision

I wanted to respond to Mr. Samis’s thoughtful post on the Iowa marriage case and thought it’d be easier to do so by a separate post than by a comment. It is hard to engage such a complicated and emotionally charged question within the confines of a blog. Although I have generally found both my allies and opponents on the question to be gracious and respectful, I am also aware that this is an issue that can degenerate into dueling allegations of bad faith — of, from one side, accusations of “hate” and “prejudice” and, from the other, charges of “licentiousness” and “irreligion.” I also know that to raise the conservative position in the academy is like launching an offensive deep behind enemy lines. You may soon find yourself surrounded.

But I am finishing (with Daniel Suhr ’08) a paper on interpretation of marriage amendments using Wisconsin as a case study, so the topic is much on my mind.

First, a disclosure. I was a public proponent of Wisconsin’s marriage amendment and based my case on wholly secular grounds without reference to the morality of same-sex relationships. While I appreciate that my church believes such relationships to be morally impermissible, I am not persuaded by that judgment.

Nor do I disagree with Mr. Samis that gay and lesbian relationships, just as heterosexual unions, may — hopefully, will — exhibit the loving and supportive characteristics that he observed between his friends. I have observed the same in my own circles.

But where proponents and opponents of genderless marriage part ways is on the question of whether this resolves the matter. The latter focus not on merely on what may be similar about same-sex and opposite-sex intimacy, but also on what is distinctive.

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Judicial Campaign Talking Blues, Part 1

March law review madness has pretty much kept me from getting my blog on, so I have a whole slew of pontification on back order.

One of the things I am wondering about is campaign rhetoric in judicial elections. We all hate it, but why?

I have been thinking about it through the lens offered by one of my favorite law school professors, Duncan Kennedy. He said that there were two species of error in the way that non-lawyers think about the law. One is lay cynicism — the idea that judges do whatever they want to and that judging was just politics by another name. (There was, of course, a sense in which Duncan believed this — probably still does — but it was at a structural rather than decisional level.) 

One of the things that I think we hate about many judicial campaign ads is that they appeal to this lay cynicism.

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At Least We’re Not Facing Relegation

We argue around here about the extent to which Wisconsin is a “tax hell” or has a bad business climate. Each side marshals the facts that support its position.  Our tax burden is extremely high, but our spending levels are closer to average.  Part of that is that we tend not to employ users fees.  On the other hand, the spending numbers have to be read in light of our low levels of federal aid and below-average state income and so on.

William Ruger and Jason Sorens at the Mercatus Center at George Mason University have developed indices of personal and economic freedom and compared all 50 states. The economic index is, of course, value driven. They are looking for low taxes and spending, less regulation, and a greater degree of local control over resources. They prefer user fees to taxes.

On this measure, Wisconsin does poorly. It is 42nd in fiscal policy, 35th in overall economic freedom, and 37th in the overall freedom ranking.

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