What about the relations of Supreme Court nominees?
Eric Schneiderman, a New York state senator and a candidate for attorney general, was involved in what’s being termed a minor hit-and-run, but from what I’m seeing, only involved his car hitting a parked, unoccupied vehicle. This shouldn’t impact his political career. Schneiderman is a talented, reform-minded, and ethical state senator — and New York state is in desperate need of men like him. If the incident reports stand up, Schneiderman made a mistake, but not one big enough that it could (or should) tarnish his promising career. Still, I suppose, it’s fair game to report.
The same can’t be said of NY1′s decision to release the name of the staffer who was with Schneiderman at the time — Rachel Kagan, Elena Kagan’s niece — and DailyIntel‘s decision to, like Politico, re-report it with snarky commentary.
As a staffer in a case like this, Rachel’s culpability is derivative of the senator’s. If she made a mistake, that’s between her and Mr. Schniederman, and is not a matter of public concern. Further, if this is an invasion of her privacy, it’s one that Rachel, as a younger professional in the internet age, is likely to feel more keenly. Mentions on sites like Politico and DailyIntel have a way of dominating Google results for your name.
In the hopes of altering the total mix of information, then, let me add: I met Rachel last fall during the citywide primaries. After work one day — I was counsel to an Assembly subcommittee at the time* — we put up posters together for one of the candidates (I think it was Bill De Blasio?) around Midtown East. I can say with confidence that Rachel is an intelligent, conscientious, kind, and truly dedicated person. New York politics should reward such people, and I find it hard to believe that Rachel would ever be at fault in a situation like this. She deserves all the success in the world, and has worked hard for it.
(More importantly, she didn’t tell our fellow campaigners that, while driving, I made a wrong turn and landed us briefly in Queens. Much appreciated, but now the secret’s out.)
Newspapers need to realize that the decision to publish someone’s name has reprecussions. Hopefully, in this case, it won’t.
* = Similarly, I have never stated on this blog for whom I worked, nor do I intend to now. On the off chance that someone figures it out, my views here are my own, not anyone else’s.
Highlighting last week’s victory for marriage in Massachusetts, and the likely pending victory in California, Andrew Sullivan’s Daily Dish has been examining the Defense of Marriage Act, its past, and its future. Yesterday he offered this post explaining the state of the law pre-DoMA. Because the full picture is more complicated, I offered this clarification, which hasn’t been printed, but I feel is still important.
—*—
Andrew,
Although your source is right that “[t]he federal government had to recognize even a marriage that no other states would allow,” pre-DoMA, the states were, and still are, permitted to raise “public policy” as a defense to the recognition of marriages performed by sister states, or foreign jurisdictions. This would necessarily have also blocked federal recognition of the same.
However, the public policy defense is famously hard to meet. As the New York Court of Appeals found when deciding In re May’s Estate, a marriage valid at the place of celebration (lex celebrationis) is generally only void if “offensive to the public sense of morality to a degree regarded generally with abhorrence” (for your legal readership, the citation is 305 N.Y. 486 (1953)). Even incestuous marriages don’t meet that high level of (subjective) immorality. The general feeling, then, is that unless a state concludes that gay marriage is more offensive to public policy than incestuous marriage, a second jurisdiction has to recognize a gay marriage validly performed in another jurisdiction.
Most readings of the Full Faith and Credit Clause require the same conclusion as a matter of federal law – although there are honest, educated readings of the Clause that don’t require states to recognize marriages they otherwise would not (Linda Silberman, a professor at NYU Law and an expert on this subject matter, supported this theory in 1996, though I can’t remember if she still does).
In sum, then, because sister states are required to recognize marriages performed by other states, once Hawaii legalized gay marriage in the 1990s, the other forty-nine had a reasonable “fear” that they’d be forced to recognize gay marriages performed there, once the couple moved back “home” to, say, Georgia. From there, the states had two options. First, they could develop conflicts of laws theories that would allow them to reject marriages on a case-by-case basis: for example, if I’m a Georgia resident, and go on vacation to Hawaii for a day, where I marry another guy, Georgia could reject my marriage because it was clearly performed only to evade my home state’s law. There’s some legal basis to that theory, and it has the virtue of not offending an entire class of citizens. Or, second, they could support and secure passage of a showy, likely unconstitutional federal law designed to sate the anger of their culture-war-crazed constituents, and consign all gay Americans, nationwide, to permanent second-class status.
Sadly, the anti-marriage lobby took the road more traveled by. And when that wall comes crashing down, it will make all the difference.
—*—
I’ll note that Andrew has a history of publishing emails from me in substantially redacted form; that’s all well and good, but this one (I’m the first) redacted the part that disproved his counterargument. Specifically, he understood enough from Kagan’s memos to be somewhat angry about them. Either they’re not that opaque, or he didn’t know what he was angry about.
