E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The U.S. government's filing in Hollingsworth v. Perry, the California gay marriage case, asks the Court to adopt the "eight-state solution" to the issue. That is, it argues that in states that have given gay and lesbians couples all the rights that otherwise attach to marriage but have withheld the designation "marriage" from their relationships, the federal Constitution requires that the states make that designation available to those couples.
This would eliminate what seemed to some legislators, for example recently in Illinois, a compromise position. And, in so doing, the eight-state solution would force legislators in other states to an all-or-nothing choice. Is that a perverse incentive, or more like holding legislators' feet to the fire? The eight-state solution tells legislators that, despite what they might prefer, they can't avoid confronting the issue of marriage equality by adopting something just a bit short of that. (Presumably, even were the eight-state solution to become the law of the land, legislators could avoid enacting full marriage equality by going less far than California and Illinois did in equalizing the rights available to straight and gay/lesbian couples.)
Does the eight-state solution illustrate a slippery slope? Maybe, if one thought that, absent the availability of that solution, the Court would not have been able to craft a position short of full marriage equality nation-wide. Note, though, that Judge Reinhardt for the Ninth Circuit was able to craft a one-state solution resting on characteristics of what happened in California that had not happened anywhere else.
Finally, I think it's of interest that Illinois's attorney-general joined an amicus brief supporting full marriage equality, after the state legislature enacted and the state's governor signed an "everything but the name" statute. I'll preempt Sandy Levinson by observing that this might be one consequence of the presence on the state level of quite non-unitary executive branches.