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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