I’ll be appearing tongight on Wisconsin Public Television’s Here and Now, discussing the Government Accountability Board’s new rule requiring groups and persons who spend more that $ 25 on something called “political communications” during a set period preceding an election to register, make certain filings and disclose the source of their funds. Joining me will be Mike McCabe of the Wisconsin Democracy Campaign.
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.
I brought a chocolate sheet cake to work the other day. I’d asked for an “outer space” theme for the decoration, and the cake decorator at my favorite bakery didn’t disappoint. There was a quarter moon, and a sky full of stars, and even the planet Earth in blue and green frosting, showing the Western Hemisphere side of things.
The reason for the celebration was to mark the ten-year anniversary of my joining the staff of the Sheboygan District Attorney’s office as a state prosecutor.
The “outer space” theme was to mark the fact that in those ten years, I’ve driven more than 130,000 miles back and forth from home to office. If you look that up, you’ll find it’s more than half the distance from the earth to the moon.
Gives a whole new meaning to the phrase “going the distance”!