A recent article by Prof. Steven Gey briefly cites in a footnote my Crime-Facilitating Speech piece, quickly describes my proposal, and then says:

Professor Volokh draws two exceptions to this rule [of generally protecting speech even though it's crime-facilitating]: first, when the information creates "extraordinarily serious harms," and second, when the speech "seems to have virtually no noncriminal uses." Volokh's analysis and conclusions are largely consistent with the arguments presented in this Article, although the protectiveness of Volokh's rule would depend on how narrowly the courts interpret Volokh's two exceptions. Volokh is aware of this problem, and is appropriately circumspect about the difficulties of defining the relevant harm threshold that triggers the exceptions to the rule.

As I read it, Prof. Gey is in some measure criticizing my approach, though also in some measure agreeing with it, both of which are perfectly fine. (OK, the latter is more fine than the former, but while I like it when people agree with me, that itself is hardly occasion for great joy, just like disagreement as such is no occasion for great sorrow.)

What particularly pleases me, though, is the last sentence: To me, one of the marks of sound and careful scholarship — as opposed to, say, effective advocacy or emotionally rewarding self-expression — is being aware of the problems in one's proposals, and therefore being appropriately circumspect about the difficulties of properly crafting the proposals. I try to always aim at this. I'm sure I often miss. But if Prof. Gey is correct that in this instance I succeeded, I am very glad indeed.

See here.

I'm pleased to say that I'll be posting occasionally at Ariana Huffington's new mass-blog. The great majority of my posts will still be here, but I'll occasionally pipe in there. Why? Precisely because the readers there are likely very different than the ones we get here (much as I love you folks!).

The decision, from a federal trial judge in Nebraska, is here. I think it's quite mistaken, and will be reversed on appeal. A few thoughts:

1. The judge doesn't hold that there's a constitutional right to same-sex marriage as such. Rather, he holds that the recently enacted Nebraska constitutional amendment banning same-sex marriage — "Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska." — is unconstitutional. (See footnote 1 of the decision.) But as I'll discuss below, the logic of the opinion suggests otherwise; if the judge is right, then states would indeed be required to recognize same-sex marriage.
2. First Amendment: The judge reasons that the amendment is unconstitutional because it interferes with people's First Amendment rights to advocate, and to association in order to advocate, for legislation protecting same-sex relationships: "The knowledge that any such proposed legislation violates the Nebraska Constitution chills or inhibits advocacy of that legislation, as well as impinging on freedom to join together in pursuit of those ends."

   That, I think, can't be right. Most state constitutional provisions make it harder for people to enact certain laws — a state constitutional right to privacy, for instance, makes "chills or inhibits advocacy of [privacy-restricting] legislation" in precisely the same way as the Nebraska same-sex amendment does: People become less willing to advocate the legislation since they know it will be futile, so long as the amendment remains on the book. Likewise, federal laws "chill[] or inhibit[] advocacy of [state] legislation" that would be preempted by those laws. State laws "chill[] or inhibit[] advocacy of [local] legislation" that would be preempted by those laws. (For instance, state marriage laws, which to my knowledge always set forth rules that apply throughout the state and leave no room for contrary local decisions, equally chill or inhibit advocacy of city- or county-level marriage laws.)

   Of course, none of these laws or constitutional provisions violate the First Amendment; they don't keep people from expressing their ideas — they just make it harder for people to turn those ideas into law. That is the very purpose of constitutional constraints on legislation, and the purpose doesn't violate the First Amendment. But precisely the same is true about the Nebraska same-sex marriage amendment.

3. Intimate association: The Supreme Court has recognized that people have an unenumerated right to engage in intimate association — to make friends, to rear children, to live with relatives, and the like. The judge in this case argued that the Nebraska provision interfered with this right:

   The amendment goes far beyond merely defining marriage as between a man and a woman. By its terms, Section 29 mandates that Nebraska will not recognize or give effect to “the uniting of two persons” in a same-sex relationship “similar to” marriage. This language, especially given the expansive reading it has been afforded in Nebraska, potentially prohibits or at least inhibits people, regardless of sexual preference, from entering into numerous relationships or living arrangements that could be interpreted as a same-sex relationship “similar to” marriage.

   Many social or associational arrangements run the risk of running afoul of the broad prohibitions of Section 29. Among the threatened relationships would be those of roommates, co-tenants, foster parents, and related people who share living arrangements, expenses, custody of children, or ownership of property.

   I'm not sure that the court is reading the amendment properly: Living together and sharing expenses (or even ownership of property) is not necessarily "the uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship" — the only legal relationships there are those of co-owners, which have never been seen as "civil unions," "domestic partnerships," or "same-sex relationships." (The matter might be somewhat different as to shared custody of children.)

   But in any event, the amendment does not prohibit any cohabitation relationships — at most, it bars the government from giving them legal recognition as a "civil union," "domestic partnership," or "same-sex relationship." The right to intimate association does not include the right to have the government specially subsidize or recognize your intimate association. That's why, for instance, the law can give married people special benefits that single people lack. Your intimate association rights doubtless give you the constitutional right not to get married, but that doesn't mean the government has to give you as a single person the same subsidies and special legal privileges that it gives married people. (I will deal with the equality argument below, but for now my point is simply that there's no violation of intimate association rights here.)

   The amendment might conceivably bar same-sex couples, as couples, from adopting children or having foster children. But the constitutional right to intimate association does not include the right to adopt or to have foster children.

4. Equal protection: The court holds that the Nebraska amendment violates the Equal Protection Clause, citing Romer v. Evans (1996). Here, it's argument is at least plausible: Romer struck down a Colorado amendment that prohibited all state and local bans on sexual orientation discrimination. I think Romer is wrong, badly reasoned, and vague in its implications; but, while it's impossible to tell for sure given Romer's vagueness, I think that Nebraska amendment is constitutional even under Romer.

   Romer rested in large part on the conclusion that the Colorado amendment's "sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests." The Colorado amendment's defenders urged that the amendment was needed to protect "other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality"; and the Court did not condemn this interest. Rather, it concluded that "The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them," chiefly because the Colorado courts interpreted the amendment as being extremely broad, covering many situations where no private landlords or employers were involved (for instance, when the government created a nondiscrimination policy governing its own operations).

   Here, the law leaves state and local government free to enact bans on sexual orientation discrimination in lots of contexts. The government only mandates that marriage and similar institutions be reserved for opposite-sex couples; and this mandate is closely tied to the government's desire to reserve the special benefits of marriage for that sort of relationship — a union of one man and one woman — that Nebraskans think is particularly valuable to society, and thus particularly worth fostering.

   The test that Romer set forth was that the law must have a rational relationship to legitimate state interests, not the very demanding "strict scrutiny" test (which requires narrow tailoring to compelling state interests). This "rational basis" test is traditionally pretty deferential to the government; and while in Romer it wasn't applied with the normal deference, the Court's stress in Romer was simply that the law was so overinclusive relative to the interest in protecting associational freedom that it was irrationally broad. Here, the law is a much better fit with the government interest. And it seems to me (and, I'd wager, to the Supreme Court) that the government interest in promoting opposite-sex relationships as the best for society is indeed a legitimate interest, even if it's one that reasonable minds may differ about.

   Nor is it right to argue, as the court does, that the law "goes so far beyond defining marriage that the court can only conclude that the intent and purpose of the amendment is based on animus against [the] class [it affects]." First, the law doesn't go at all far beyond defining marriage; it clearly covers marriage and its modern equivalents and near-equivalents. It makes perfect sense that as new quasi-marriage statuses are set up to avoid the legal restrictions on marriage, voters would cover these quasi-marriages as well as traditional marriages.

   Second, while the law does reflect a sense that same-sex unions are less worthy of public support than opposite-sex unions, the Court has never held that this view is impermissible. Most laws reflect the notion that some conduct is better than other conduct. Unless (and I'll get to this below) the court really is saying that it's unconstitutional "animus" to have marriage be opposite-sex-only — that is to say, unless the court believes that Nebraska has to recognize same-sex marriages — there's no unconstitutional animus in Nebraska voters' insisting that marriage be opposite-sex-only, rather than just leaving the matter to their representatives in the legislature.

   Finally, note that the standard canon of interpreting statutes is that they must be interpreted to avoid constitutional problems, when such an interpretation is consistent with the language. For instance, if the court fears that reading the amendment broadly — for instance, covering co-tenancy contracts, or co-ownership arrangements, among romantically linked same-sex couples — would violate the Equal Protection Clause under Romer, then the court should read the amendment (quite plausibly) as not being that broad, and only covering marriages, statutory civil unions, or statutory domestic partnerships, not centuries-old generally applicable rules of contract and property law.

   Judges should not choose the broadest interpretation of a statute and then strike the statute down because the interpretation they themselves chose was unconstitutionally broad. Thus, the judge's argument that "a domestic limited partnership" — a business entity — "composed of same-sex partners as defined in the Partnership Act could run afoul of [the Nebraska amendment] as it is written" is quite wrong. Reading the amendment as covering business partnerships that just happen to have partners of the same sex isn't even a particularly plausible reading of the amendment; and it certainly isn't the only or most plausible reading of the amendment. The judge must therefore choose the reading that is constitutionally permissible under Romer, rather than choosing an unnecessarily broad reading that would then lead him to strike the statute down.

5. Bill of Attainder Clause: The court also reasons that the law is an unconstitutional bill of attainder because it "inflict[s] punishment" on same-sex couples, because it's "directed at gay, lesbian, bisexual and transsexual people and is intended to prohibit their political ability to effectuate changes opposed by the majority." That's quite mistaken, I think, for the reasons I mentioned as to the First Amendment — all state constitutional provisions, as well as federal laws that preempt state laws and state laws that preempt local laws, block some groups from enacting laws that they like.

   State constitutional bans on polygamy block polygamists from enacting laws that they like. State bans on lotteries block lottery operators from enacting laws that they like. Some state criminal rights provisions block some tough-on-crime folks from enacting laws that they like.

   Moreover, it's the nature of a democracy that the majority blocks "changes opposed by the majority." It may not block advocacy for such changes; but it can surely block such changes. And if the majority sufficiently opposes certain changes, it can block them at the state constitutional level rather than just at a state statutory level, or at a state statutory level rather than the local level. The whole point of state constitutions is for the statewide majority to prevent its representatives in the legislature (or voters or legislators in the state's political subunits) from enacting changes opposed by that statewide majority.

   The prohibition on Bills of Attainder provision has never been read remotely as broadly as the court suggests; nor would it make any sense for it to be read this broadly.

6. But in any event — and here I return to what I said in point 1 — if the court is right about the Romer analysis, then it must be because there is no legitimate government interest in favoring opposite-sex long-term relationships over same-sex ones. Likewise, if the court is right about the intimate association analysis, then it must be because the right to intimate association guarantees same-sex couples the right to equal government benefits with opposite-sex married couples, rather than just a right to live together. And if the court is right about bills of attainder, then its analysis equally applies to state law rules that preempt contrary marriage provisions at the city level. (Imagine Portland or San Francisco trying to set up its own marriage rules, over the objections of the rest of Oregon or California.) And if that's so, then despite the court's protestations, its reasoning necessarily means that states are constitutionally required to recognize same-sex marriage (or, under the bill of attainder analysis, at least are required to let any locality recognize same-sex marriage).

So this isn't just a battle over state constitutional amendments, and what voters can do and what they must leave to the state legislature. The court's decision, if upheld, would be a Massachusetts Goodridge (or at least its Vermont civil-union cousin, Baker) for the whole nation. I don't think this is at all required by Romer, Lawrence v. Texas, or any other Supreme Court decision. I'm pretty sure that the Eighth Circuit Court of Appeals will reverse the decision; and if it doesn't, I'm pretty sure that the U.S. Supreme Court will — and should.

A very good piece by my fellow Russkie, Max Boot.

here. I'm not sure I agree with everything Cramer says here, but the criticisms of Buchanan strike me as quite apt.