One who would defend the [Constitution] must share his foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply. It is a fair summary of history to say that the safe­guards of liberty have often been forged in contro­versies involving not very nice people. Kopf v. Skyrm, 993 F2d 374, 308 (4th Cir. 1996). Judge Hall was writing about the Fourth Amendment, but the sentiment applies most admirably to the First Amendment as well, as another 4th Circuit panel noted recently in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009). In [ . . . ]

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I talk about gay marriage a lot because I believe that it has inter­esting features and conse­quences beyond those commonly subject to discussion. For example, in my Law Review article, “Same-​​​​Sex Marriage and the Federal Spousal Privileges,” I argue that vari­a­tions in state laws dealing with gay marriage create a situation where federal courts may be faced with a novel choice-​​​​of-​​​​law question: To which state’s laws should a federal criminal court look to determine the validity of a marriage for purposes of applying the spousal testi­monial and commu­ni­ca­tions priv­i­leges to same-​​​​sex marriages under Federal Rule of Evidence 501. (That article was finished in April, 2009, and has [ . . . ]

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