What about privacy arguments? "Anti-polygamy statutes draw the line at the number of spouses, not their characteristics or status. There is long-settled precedent that limiting the number of spouses does not violate any constitutional guarantee, nor should it." This is the right focus, though a tad bit conclusionary. Some would also suggest polygamy harms women by furthering patriarchy (one man/many wives, the most popular form of multiple marriage). Also, popular support of the rights of same sex couples trumps polygamy by a large degree, and this too factors into constitutional analysis. Ultimately, she would leave it to the states, including state courts. Not a bad idea.
I think this response sets up a bit of a straw man: the idea that the Patriot Act was designed solely to arrest terrorists, with the apparent implication being that any use of the Patriot Act in criminal cases is somehow illegitimate or abusive. I'm not sure if any supporter of the Patriot Act has ever claimed that the Patriot Act has no application in the field of criminal law. If they have, they were wrong.
-- Orin Kerr
Yes, I have no idea where people got the idea that the "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" Act was primarily concerned with terrorism. The scorn his opponent offers at the "lawyer" tricks used by Kerr to defend the law might be unfair to lawyers, but the sentiment is justified.
Weasel words like "solely" and "no application” aside, the provision was rushed into law and defended because terrorism supposedly required quick action and some tinkering of the balance toward order. Kerr's use of the ACLU to promote his point of view is also too funny. This is the second time I saw that talking point, suggesting that care should now be used by those on that side of the fence in supplying even guarded support for such laws. Kerr also suggests, hey maybe the law needs to be tinkered a tad, no big deal either way, apparently. Good thing too, since his man Bush doesn't want one iota changed.
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Eugene Volokh points us to a case out of Kansas that upheld the "placing restrictions on the display of the large signs displaying photographs of mutilated fetuses" during a protest in a high traffic area. "The officers gave the demonstrators the option of staying by the side of the road if they did not display the large, graphic photographs that had distracted motorists or the option of displaying the photographs at a location further from the road." The justification was traffic safety with captive audience (including minors) concerns raised as well.
I do not quite agree with Volokh that 1970s case involving a statute that specifically targeted drive-ins showing films with nudity that can be viewed by the outside public is clearly directly violated. The opinion specifically is concerned with the content specific nature of the law and suggests a narrow one with a general reach would be acceptable. It might be a matter of him trying to use the case alone too much or not comparing the two in enough details, but I don't quite buy his comparison.
I agree the abortion sign ruling is wrong though, especially since it is perverse to suggest a protest is illegitimate because too many people might see it. The offensive nature of the signs also is in the eye of the beholder. For instance, many are as offended by some gay rights parades. It is useful to remember the point of view being promoted -- if you believe abortion is murder, reminding the public who is being killed is not unreasonable. Free speech, including for controversial topics and modes of communication, must be upheld across the board. Rulings like this one are troubling.