Hooray!  Ricochet at its best.

I agree with Peter: "shameless" is not too strong a word.   His WSJ piece with David Boies this morning is a pseudo-idealistic piece full of misleading statements (and mixed metaphors: "this badge of inequality must be extinguished" -- yikes).  They describe Prop 8 as "eliminating the right" to gay marriage, without mentioning that the "right" had been judicially-imposed by the California Supreme Court.  Prop 8 simply restored what the voters previously decided in Prop 22.  They claim that the growing acceptance of SSM in some way strengthens the constitutional case against Prop 8, even though both of them (Olson at least) must know that you don't interpret the Constitution based on polls.  And this morning in response to a question from Sotomayor, Olson could not articulate a coherent reason why the "marriage right" shouldn't be extended to polygamy and incest.  Olson is promoting Olson -- the Constitution is collateral damage. 

Scalia's reductio argument was unfortunate. There ought to be a world of difference between a law that criminalizes homosexual conduct and a law that simply excludes such conduct from the definition of marriage. During the Law Talk at Fordham, I think you (Richard) pointed out that the equal protection clause was originally understood as applicable to criminal law, not civil laws such as marriage. So on originalist grounds, can't we distinguish Lawrence from the question of gay marriage?

Ah, now I see your position.  Well, I agree that government involvement does tend to ruin things!

The First Amendment guarantees every clergyman's right to perform any sort of marriage, and it protects everyone's right to refer to their relationships as "marriage."  But it doesn't guarantee state recognition and subsidies for every purported "marriage."  Does your "fundamental right" extend to polygamous marriages?  Incestuous marriages? Asexual marriage?  Or in Scarlet's example above, marriage between business partners?  If not, why not? 

It is the essence of law to make distinctions; most of them are not invidious.  Assuming for the sake of argument that DOMA presents an equal protection issue (and it would be only a pseudo-issue because the equal protection clause applies only to the states), then it should be judged by rational basis scrutiny and upheld.

By the way, I should mention that not all conservative scholars have signed on to the federalism brief.  Nicohoas Quinn Rosenkranz, one of the leading constitutional scholars and a colleague of Randy Barnett at Georgetown, also argues that DOMA section 3 is consistent with federalism.   See here and here.

Equal protection does not mean that the IRS must grant every tax advantage dreamed up by the states.  The question is whether gays are a protected class  and if so, whether the traditional definition of marriage can withstand whatever level of judicial scrutiny the court decides to apply.  If there is a violation of equal protection, then the violation would not depend on a discrepancy between state and federal tax regimes. 

"Any change, at any time, for any reason, is to be deplored."

-- Duke of Cambridge

I'm afraid I don't see how that proves anything.  State and federal governments are free to create different tax regimes, even if it creates more paperwork for certain filers.

DOMA is current law and my understanding is, no, gay couples cannot opt for "married filing jointly" status.

Yes, that's section 2, but that section is not at issue in the DOMA case.  However, if the Prop 8 decision is upheld, it could (depending on the breadth of the decision) create a national constitutional right to same-sex marriage, in which case section 2 is irrelevant since all states will have to recognize same-sex marriages.

The reasons given for secession, on both left and right, could be solved by returning to genuine, constitutional federalism.  I completely sympathize with those who have given up hope on that front and seek a clean break, but for me, I'd rather work on reviving states rights within the Union. 

Well said and, yes, that is the crux of the matter.  The progressive movement is rooted in a desire for government planning, and planning requires control.  Vermont may secede, but there will be no end of "progressives" who then want Montpelier to micromanage people's lives.  The beauty of true federalism is that we would have a chance to see Vermont's utopian dreams play out for real.   Windmills and socialized medicine?  Let them try it.

Well, that's misleading, even by CNN's low standards.  According to today's WSJ, the cuts for the remainder of fiscal 2013 amount to $43 billion and those will take effect incrementally between now and September 30.  The idea that the government has to cut $85 billion starting right now is a fine example of the mass media repeating BHO's scare tactics.

Thanks!  But I should point out that many (probably a majority) of legal academics believe that US Courts have jurisdiction to hear Alien Tort cases where neither party is American and where the alleged tort did not occur on US soil.   SCOTUS is currently considering just such a case: Kiobel v. Royal Dutch Shell, in which 12 Nigerian plaintiffs are suing a Dutch corporation for allegedly conspiring with the Nigerian government to commit crimes -- in Nigeria.