“No School Choice for You!”

If you're the kind of revolutionary, trailblazing, damn-all-conventions parent who wants your child to have--gasp!--a quality education, and you would like to have the ability to get your child into quality schools just like rich people do, then you don't have a friend in the Obama administration:

One of President Barack Obama’s conceits is that he is a pragmatist who seeks policies that work rather than pursuing a partisan agenda. On school choice, he doesn’t live up to the advertisement. His administration has been relentless in its ideological hostility to the idea, and seized on every possible pretext to express that hostility.

The White House considers any government funding for private or parochial education, even indirect funding, to be a betrayal of the public schools. The D.C. Opportunity Scholarship Program -- which provides federally funded vouchers for poor kids in Washington to attend private schools -- seems to have had some positive results, including higher high-school graduation rates for participants. Yet the Obama administration, not generally known for its tightfistedness, has repeatedly tried to end funding for it.

This position was terribly misguided, but it was at least open and transparent. Twice this year, the White House has gone after local school-choice programs -- which involve no federal funding -- in a more underhanded way.

In April, the Justice Department announced that private schools that participate in a choice program in Milwaukee will be subject to new regulations under the Americans with Disabilities Act. They will be treated as though they were government contractors. Never mind that the schools have contracts with parents, not with the government that aids the parents. Never mind, either, that in the program’s 22 years of operation no complaint about the treatment of a disabled student has ever been filed. A five-year study of the program found that being disabled had no bearing on a student’s likelihood of getting into a participating school.

The decision will nonetheless raise costs for the private schools. It will also make them think twice about participating, both because they want to avoid those costs and because they don’t want to compromise their independence.

Read on for a discussion of the administration's decision to sue Bobby Jindal's school choice program in Louisiana, which has been covered here. It is perhaps trite to recycle that old line about education being the focus of the civil rights struggle of our time, but just because the line may be trite doesn't mean that it isn't true. It's bad enough that the Obama administration won't promote school choice in DC. It is even worse that--as Ramesh Ponnuru notes--it is trying to suffocate school choice efforts in states and localities around the country, and that it is on the wrong side of the civil rights struggle as a consequence.

The Dangers of Political Activity

We are regularly told that we, as citizens, should become more active in public affairs. We are told that this would make us more informed about the issues of the day, and that being more informed, we could make better decisions as citizens, and force our elected officials to make better decisions as well.

By and large, all of this is true. And of course, with blogs, Facebook, Twitter, and other forms of social media, we can be more involved in public life. As individual citizens, we are empowered as never before to impact what goes on in our communities, in our cities, in our states, and in our country.

But any advice to get more involved in public affairs--and to do so with the help of social media--should come with a warning: If you do get involved, be prepared to pay lots of money to be regulated by your state in flagrant violation of past Supreme Court rulings. Be prepared, in short, to have your First Amendment rights ignored and trampled upon by the state.

The Supreme Court has the opportunity to put a stop to this latest example of overregulation and liberty infringement. The question is, will they? Or will the First Amendment become more and more of a dead letter?

In Memoriam: Ronald H. Coase

The great man lived for over a century, but as is the case with the passing of other great and productive minds, one feels as though the world did not have him for nearly as long as he was needed. Here is the University of Chicago Law School remembrance, which helps sum up his extraordinary legacy:

Coase, the Clifton R. Musser Professor Emeritus of Economics, is best known for his 1937 paper, “The Nature of the Firm,” which offered groundbreaking insights about why firms exist and established the field of transaction cost economics, and “The Problem of Social Cost,” published in 1960, which is widely considered to be the seminal work in the field of law and economics. The latter set out what is now known as the Coase Theorem, which holds that under conditions of perfect competition, private and social costs are equal.

“That Ronald Coase is among the most influential and best-cited economists in the past 50 years is not debatable,” said Law School Professor Emeritus William M. Landes and Sonia Lahr-Pastor, JD '13, in “Measuring Coase’s Influence.” They presented the paper at a 2009 conference titled “Markets, Firms and Property Rights: A Celebration of the Research of Ronald Coase.”

“Among the highest aspirations of the University of Chicago is the drive to create new fields of study that change our world for the better,” said University of Chicago President Robert J. Zimmer. “Ronald Coase embodied that ideal. His groundbreaking scholarship made impacts on law and policy that people around the globe continue to feel today. As a scholar, a colleague and a mentor, his historic contributions enriched our intellectual community and the world at large.”

“Ronald Coase achieved what most academics can only dream of – immortality,” said Michael H. Schill, dean of the University of Chicago Law School. “His scholarship fundamentally changed the way lawyers approach issues of when and how government should intervene in the economy, and when and how private contracts should govern. His work could not be more relevant to many of the debates we are enmeshed in today.

“Our great law school has contributed much to the world of law and jurisprudence,” Schill said. “Ronald’s contributions were among the most important.”

His intellectual impact continued late into his life, when at the age of 101, he published his final book, How China Became Capitalist, co-authored with former student Ning Wang, PhD’02.

Read the whole thing. Here as well is the New York Times obituary. My favorite passages from the piece:

In his autobiographical essay written for the Nobel committee after being awarded the prize, he recalled being taken by his father at age 11 to a phrenologist to hear what could be discovered from the shape of his head. The phrenologist detected “considerable mental vigor,” Professor Coase wrote, and recommended that he work in banking or accounting and raise poultry as a hobby.

[. . .]

While teaching at the University of Virginia, Professor Coase submitted “The Problem of Social Cost” to The Journal of Law and Economics, a new periodical at the University of Chicago. The astonished faculty there wondered, according to one of their number, George Stigler, “how so fine an economist could make such an obvious mistake.” They invited Professor Coase to dine at the home of Aaron Director, the founder of the journal, and explain his views to a group that included Milton Friedman and several other Nobel laureates-to-be.

“In the course of two hours of argument, the vote went from 20 against and one for Coase, to 21 for Coase,” Professor Stigler wrote later. “What an exhilarating event! I lamented afterward that we had not had the clairvoyance to tape it.”

Jonathan Adler writes that "[m]ost of us [academics] would be lucky were our entire body of work to have the impact of just one of his articles." Ilya Somin also has some appropriate thoughts for the occasion:

One of my personal favorite Coase articles is “The Lighthouse in Economics,” where Coase shows that private entrepreneurs successfully established and operated an enterprise that most economists believed was the classic example of a public good that could only be provided by government. This doesn’t prove that the private sector can provide all public goods (nor did Coase claim that it can); but it does show that we should be more careful than we usually are in asserting that a given good can only be provided by the state just because it is public in nature. Before Coase, most scholars and public policy experts had simply assumed that the private sector was incapable of providing lighthouses without much investigation of the issue.

Richard Epstein, who was a longtime colleague of Coase's, also adds his thoughts:

Why was Ronald so great? The answer is not because he was smart. In fact, I suspect that by the usual measures of intelligence Ronald would not do well against the types who excel in proving mathematical theorems or solving crossword puzzles. No, Ronald was not "smart."  But he wasbrilliant. He could look at the most mundane facts of ordinary life and distill from them insights about how the world worked -- and, indeed, had to work. 

To make the point more generally, the idea that social interactions took place in a frictional universe was not first discovered by Ronald. The point was in the background of virtually every discussion of the operation of the legal system from the beginning of legal history. But lawyers, in particular, are creatures of doctrine, and their first intuition was to look for elegant points of law over which to argue in the manner of great appellate lawyers and to ignore the inconspicuous substrate on which the entire system rested.

To put it otherwise, what he did was make friction the main event in all cases, not just a sideshow. He did it first when, in The Nature of the Firm, he asked the simple question of why individuals sometimes form firms to organize their business and on other occasions resort to the price system to exchange goods. No one before Ronald has put the point exactly in that way, and yet, once the question was made, his simple answer—namely, that it is costly to form a price system and costly to form a firm—started a huge rush of productive scholarship. No longer does one think of business entities as suspended in space. It is not possible to ask when the transaction costs are higher in the one direction than in the other, so that there is a kind of balance that explains why both types of arrangements are so commonplace.

From there, it turns out that the study of partnerships, corporations, lending agreements, joint ventures, and a host of other arrangements are all amenable to the transaction costs analysis. At each stage in the analysis, we are always sure that there has to be something more to the overall system. But in each case, supposed side constraints fit very well within the simple model that Ronald developed by asking the right question and then looking hard at the everyday facts of the world to see how it operates. 

What is obvious now was not obvious then, which is why Coase is not just a distinguished person, but the champion of a worldview—the Coasean worldview—which will rank up there, when all is said and done, with the Hobbesian, Lockean, and Humean views of human nature -- and not just because he shares with them the inestimable advantage of a one-syllable name.

Some wise words from Coase, courtesy of Geoffrey Manne. Coase's skepticism of regulation is worth keeping in mind, especially given the plethora of regulation-happy politicians and online pundits. I will close this post by noting Peter Klein's comment on how Coase constructed his extraordinary oeuvre "despite — or because of? — not holding a PhD in economics, not doing any math or statistics, and not, for much of his career, working in an economics department."

Requiescat in pace.

What Justice Ginsburg Gets Wrong

Her disparagement of the Roberts Court notwithstanding, it is not an activist Court:

Justice Ruth Bader Ginsburg believes the Roberts Court is “one of the most activist courts in history,” according to a widely cited interview with the NYT‘s Adam Liptak.   ”Activist” is a slippery label, often indicating nothing more than disagreement with a Court’s decision in a given case.  fortunately Justice Ginsburg provided Liptak with a definition.  Specifically, Ginsburg told Liptak that “if it’s measured in terms of readiness to overturn legislation, this is one of the most activist courts in history.”  This is one way to define judicial activism, but if this is the definition Justice Ginsburg wants to use, her accusation falls wide of the mark.

If activism is “measured in terms of readiness to overturn legislation,” the current Court is not one of the “most activist courts in history,” at least not compared to others of recent memory.  As Liptak’s own reporting has shown,the Roberts Court is the least activist Court of the post-war period by this measure, invalidating federal statutes far less often than did the Warren, Burger, or Rehnquist Courts.  Liptak wrote his earlier story in July 2010, but the conclusion still holds.  Since 2010 the rate at which the Roberts Court has struck down federal legislation has actually declined.  According to the same report, the Roberts Court overturns precedent at a lower rate than did prior post-War courts.

If in calling the Roberts Court  ”one of the most activist courts in history,” Justice Ginsburg meant that the Roberts Court is more activist than, say, the seriatim or Marshall Court, she has a point. If she meant to imply the Roberts Court is any more “activist” than any other court in the past 60 years, she doesn’t.

Maybe the New York Times should correct the record on this point. You know that they would if John Roberts, Antonin Scalia, Clarence Thomas or Samuel Alito made a similar boo-boo.

Some More Stray Thoughts on Syria

In no particular order:

  • Unless there is some serious head-faking going on--and I doubt that there is--maybe it's not such a great idea for our government to leak its operational plans. Of course, the leaking shouldn't surprise us; the Obama administration continues to believe, apparently, that telling national security secrets out of school is a bad thing unless it is being done to make the president look good in the eyes of the general public.
  • Like all good dissents, this one will likely turn into a majority opinion relatively soon.
  • All of the sudden, illegal wars are all the rage. I am shocked--shocked!--to contemplate that this might have something to do with a Democratic president getting the kind of pass no Republican president would get in similar circumstances.

The New Nobility?

I am pretty sure that I don't agree with Glenn Reynolds's theory that allowing special privileges for government officials may serve to violate Art. I, Sec. 9 of the Constitution. I do believe, however, that allowing government officials to have special privileges to begin with is fundamentally offensive on a number of levels. And hey, if the advocates of a "living, breathing Constitution" are forced to have their interpretive principles used to curb the growth of government--and the power of governmental bureaucrats as well--I guess I might be able to learn to live with that outcome.

Now Under Attack: School Choice in Louisiana

I am one of those radical revolutionaries who believes that education is the great civil rights struggle of our time, and that as part and parcel of that struggle, parents who don't like the public schools where their kids are going ought to have the right to take their kids out of a failing public school and use vouchers to exercise school choice--including patronizing private and religious schools where kids can receive better educations.

I believe this strongly enough that if I were re-drafting the Constitution, I would make school choice--along with economic liberty--part of the Bill of Rights. I am glad to see that Bobby Jindal, one of my favorite governors, has decided to make school choice a priority in Louisiana.

Too bad that the Department of Justice has decided that it has nothing better to do than to sue to stop the school choice program. Note that "[a]lmost all the students using vouchers are black," which means that the Justice Department's actions will disadvantage minority students by a tremendously disproportionate amount. Should the Justice Department's suit succeed and should those students once again have to contend with failing schools, they will have Eric Holder to thank for their plight.

So, the NSA Broke the Law

A lot. Let us count the violations:

The documents, provided earlier this summer to The Washington Post by former NSA contractor Edward Snowden, include a level of detail and analysis that is not routinely shared with Congress or the special court that oversees surveillance. In one of the documents, agency personnel are instructed to remove details and substitute more generic language in reports to the Justice Department and the Office of the Director of National Intelligence.

In one instance, the NSA decided that it need not report the unintended surveillance of Americans. A notable example in 2008 was the interception of a “large number” of calls placed from Washington when a programming error confused the U.S. area code 202 for 20, the international dialing code for Egypt, according to a “quality assurance” review that was not distributed to the NSA’s oversight staff.

In another case, the Foreign Intelligence Surveillance Court, which has authority over some NSA operations, did not learn about a new collection method until it had been in operation for many months. The court ruled it unconstitutional.

The Obama administration has provided almost no public information about the NSA’s compliance record. In June, after promising to explain the NSA’s record in “as transparent a way as we possibly can,” Deputy Attorney General James Cole described extensive safeguards and oversight that keep the agency in check. “Every now and then, there may be a mistake,” Cole said in congressional testimony.

To be sure, as the Post report points out, most of the violations were unintended, and the percentage of violations was quite small, given the vast amount of activity that the NSA engages in. But that hardly obviates one's concerns. And some of the violations are quite serious, consisting, as they do, of "unauthorized access to intercepted communications, the distribution of protected content and the use of automated systems without built-in safeguards to prevent unlawful surveillance." Additionally,

[i]n what appears to be one of the most serious violations, the NSA diverted large volumes of international data passing through fiber-optic cables in the United States into a repository where the material could be stored temporarily for processing and selection.

The operation to obtain what the agency called “multiple communications transactions” collected and commingled U.S. and foreign e-mails, according to an article in SSO News, a top-secret internal newsletter of the NSA’s Special Source Operations unit. NSA lawyers told the court that the agency could not practicably filter out the communications of Americans.

In October 2011, months after the program got underway, the Foreign Intelligence Surveillance Court ruled that the collection effort was unconstitutional. The court said that the methods used were “deficient on statutory and constitutional grounds,” according to a top-secret summary of the opinion, and it ordered the NSA to comply with standard privacy protections or stop the program.

James R. Clapper Jr., the director of national intelligence, has acknowledged that the court found the NSA in breach of the Fourth Amendment, which prohibits unreasonable searches and seizures, but the Obama administration has fought a Freedom of Information lawsuit that seeks the opinion.

The mind reels. How any of this activity helps protect the country and makes Americans feel safer and more secure is left almost entirely to the imagination, especially given the NSA's efforts to circumvent FISA Amendment Act audits that are designed to keep the program honest.

Of course, you should read the whole report. But doing so may depress you tremendously. You have been warned.

What Real Whistleblowing Looks Like

Contrary to what Bradley Manning and Edward Snowden tell us, real whistleblowing does not entail "telling the public about programs that may not be illegal, but are distasteful and morally offensive to the whistleblower, and possibly to a significant portion of the populace." Rather, real whistleblowing entails revealing programs and scandals that are illegal or that subvert the law.

Like, say, this:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.

The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial. If defendants don't know how an investigation began, they cannot know to ask to review potential sources of exculpatory evidence - information that could reveal entrapment, mistakes or biased witnesses.

"I have never heard of anything like this at all," said Nancy Gertner, a Harvard Law School professor who served as a federal judge from 1994 to 2011. Gertner and other legal experts said the program sounds more troubling than recent disclosures that the National Security Agency has been collecting domestic phone records. The NSA effort is geared toward stopping terrorists; the DEA program targets common criminals, primarily drug dealers.

"It is one thing to create special rules for national security," Gertner said. "Ordinary crime is entirely different. It sounds like they are phonying up investigations."

Read the story, and you will find that prosecutors hate this program as well, since "it can lead to all kinds of problems with discovery and candor to the court." The list of scandals demanding congressional investigation--in the form of open hearings, as I probably ought to emphasize yet again--just seems to be growing, doesn't it?

Quote of the Day

Spitzer brought many down and rattled innocent good citizens.  Everyone in New York City should worry that Spitzer will find ways, as he threatens, to radically expand the power of the comptroller to do equally dangerous things in the City.  That will include trampling on due process rights and instilling in people fear of out-of-control government officials such he aspires once again to be.

--Lawrence Cunningham on Eliot Spitzer and his campaign to be the next New York city comptroller.

The Nanny State Suffers a Setback

Very good news:

New York City Mayor Michael Bloomberg's controversial plan to keep large sugary drinks out of restaurants and other eateries was rejected by a state appeals court on Tuesday, which said he had overstepped his authority in trying to impose the ban.

The law, which would have prohibited those businesses from selling sodas and other sugary beverages larger than 16 ounces (473 ml), "violated the state principle of separation of powers," the First Department of the state Supreme Court's Appellate Division said.

The decision, upholding a lower court ruling in March that struck down the law, dealt a blow to Bloomberg's attempt to advance the pioneering regulation as a way to combat obesity. Beverage makers and business groups, however, challenged it in court, arguing that the mayoral-appointed health board had gone too far when it approved the law.

A unanimous four-judge panel at the appeals court agreed, finding that the board had stepped beyond its power to regulate public health and usurped the policy-making role of the legislature.

In particular, the court focused on the law's loopholes, which exempted businesses not under the auspices of the city's health department and left certain drinks, such as milk-based beverages, unaffected.

As a result, grocery and convenience stores - such as 7 Eleven and its 64-ounce Big Gulp - were protected from the ban's reach, even as restaurants, sandwich shops and movie theaters were not. Meanwhile, milkshakes and high-calorie coffee drinks like Starbucks' Frappucinos would have remained unfettered.

"The exceptions did not ... reflect the agency's charge to protect public health but instead reflected the agency's own policy decisions regarding balancing the relative importance of protecting public health with ensuring the economic viability of certain industries," Justice Dianne Renwick wrote for the court.

Bloomberg will, of course, appeal this ruling. And I imagine that he will try to find other ways to officiously meddle in the lives of ordinary citizens. But it is always nice to see officious meddling slapped down. And we have seen it with the reaction of the New York state court system to the soda ban.

Quote of the Day

Presently before the court is the motion of the defendant, Sony Pictures Classics, Inc. (“Sony”), seeking dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiff, Faulkner Literary Rights, LLC (“Faulkner”) has responded in opposition. The court has viewed Woody Allen’s movie, Midnight in Paris, read the book, Requiem for a Nun, and is thankful that the parties did not ask the court to compare The Sound and the Fury with Sharknado. Further, the court has thoroughly considered the filings and relevant law. The motion is due to be granted.

At issue in this case is whether a single line from a full-length novel singly paraphrased and attributed to the original author in a full-length Hollywood film can be considered a copyright infringement. In this case, it cannot.

--Judge Michael P. Mills, Chief Judge, United States District Court, Northern District of Mississippi. Faulkner Literary Rights, LLC v. Sony Pictures Classics Inc.

Chief Writer

Guest-blogging over at The Volokh Conspiracy, Ross Guberman makes the case for Chief Justice Roberts as the best writer on the Supreme Court. Much of the case is made by comparing the chief to Justice Kennedy, which is kind of like making a case for the superiority of the Harlem Globetrotters by comparing them to the Washington Generals.

That having been written, the chief does have some lovely turns of phrase to his credit. Consider:

If such a shoe exists, the parties have not pointed to it, there is no evidence that Already has dreamt of it, and we cannot conceive of it. It sits, as far as we can tell, on a shelf between Dorothy’s ruby slippers and Perseus’s winged sandals.

[. . .]

High school students can appreciate the difference between speech a school sponsors and speech the school permits because legally required to do so . . . Surely students have not lost that ability by the time they get to law school.

[. . .]

[T]here is indeed a real difference between a suit against the State brought by a private party and one brought by a state agency. It is the difference between eating and cannibalism; between murder and patricide. While the ultimate results may be the same — a full stomach and a dead body — it is the means of getting there that attracts notice. I would think it more an affront to someone’s dignity to be sued by a brother than to be sued by a stranger. While neither may be welcomed, that does not mean they would be equally received.

And you thought that reading legal opinions might be boring.

My State Attorney General Wastes Taxpayer Resources on Frivolous Lawsuits

Perhaps yours does too:

Following a letter from 22 state attorneys general, Urban Outfitters has agreed to stop selling a humorous mug with a “Prescription: Coffee” design. The AGs argued that prescription drug abuse is a very serious matter and not something to be joked about. [H/T Eugene Volokh]

The humor-impaired AGs participating (is yours on this list?) included those from Arizona, Arkansas, California, Colorado, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Mississippi, Montana, New Mexico, Ohio, Oregon, Pennsylvania, Tennessee, Utah, and Wyoming, as well as Guam. According to Maggie Thurber at Ohio Watchdog, “the Partnership at Drugfree.org went further and categorized [the mugs and related coasters and other trinkets] as ‘prescription drug paraphernalia products.’”

The mind reels.

A Much Needed History Lesson on DOMA

Many of the Democrats celebrating the Supreme Court's decision on DOMA would have you believe that they opposed the law from the outset. Zenon Evans performs a mitzvah by reminding all and sundry of what those Democrats desperately want all and sundry to forget:

. . . In response to the ruling, Bill Clinton tweeted that he is “grateful to all who fought tirelessly for this day.” He also released an official statement condemning the discriminatory nature of DOMA. What Clinton failed to mention was that he signed the act into law.

He wasn't alone in his silence. Other leading Democrats who supported it include Vice President Joe Biden, who voted for DOMA as a senator. Sen. Harry Reid (Nev.), who said, “The idea that allowing two loving, committed people to marry would have a negative impact on anyone else, or on our nation as a whole, has always struck me as absurd,” also forgot to note that he voted for DOMA. Sen. Chuck Schumer (N.Y.) released a statement praising the forward thinking of the Supreme Court. “The march towards equality... moved forward again today... The Supreme Court did the right thing here and helps us understand that the march to equality in America is unstoppable.” He made no mention of the fact that he, too, voted for the act and against "the march to equality." Sen. Bob Menendez (N.J.) patted himself on the back: “As a member of Congress who signed the amicus brief urging this decision [to repeal DOMA], I am thrilled that the Supreme Court took a strong stand for marriage equality." Menendez saw no need to clarify that this was only after he voted for DOMA in the first place. Sen. Tom Harkin (Iowa) voiced his support yesterday saying, "I am glad that the court recognized that all American families deserve the same legal protections," but made no mention of why his point of view flipped.

As in so many such cases, it is as though some people believe that their past positions cannot be accurately Googled by others.

Remember Kelo v. City of New London?

If not, read Wikipedia, or better yet, read the actual decision.

Done? Lovely. Now read this. The barbs and sarcasm contained in the following excerpt are, of course, entirely justified:

Eventually, something will probably get built on the site. But in the meantime, it will have lain empty for many years, probably at least a decade in all. In addition to the financial and emotional costs imposed on the people who lost their homes, this hiatus ensures that the takings will be a net loss when it comes to promoting development for the city as well. It is actually quite common for economic development takings to end up destroying more development than they create.

Fortunately, the eight year wait was not a total loss. Feral cats have been making use of the land where Susette Kelo’s house once stood. But I suspect that the city could have built an even better home for the feral cats for a lot less than $80 million, and without condemning any private property.

 

The Supreme Court and Same-Sex Marriage

I support the policy outcomes in both of the same-sex marriage cases before the Supreme Court. I believe that the Defense of Marriage Act was bad law that treated people differently for no good reason whatsoever, and I am glad to have seen it overturned in the Court's decision in Windsor. As law professor Randy Barnett, who wrote an amicus brief in the Windsor case, points out,

. . . DOMA was unconstitutional because (a) Congress had no enumerated power to regulate or “defend” marriage by imposing its definition on the states, and (b) DOMA was not necessary and proper for carrying into execution any of its enumerated powers.  By operating in so sweeping and undiscriminating a manner, DOMA was exceeded its enumerated powers by enacting a law that by design interfered with the operation of the traditional state regulation of marriage.  But overlooked in debates about our argument, we also made this federalism claim in the context of equal protection:  (c) DOMA’s sweeping and indiscriminate application to over a thousand federal statutes could not pass any level of equal protection scrutiny, even the most deferential, because Congress failed to identify a federal interest why each of these disparate federal laws should not track state laws defining marriage, as had previously been the case.

I agree with this reasoning, and although--as Professor Barnett points out--Justice Kennedy's opinion adopted this reasoning "with a twist," the fact remains that "federalism wins out in theory as well as in practice" when it comes to the same-sex marriage cases, which is good both for federalism, and for the cause of equality in general.

A very good analysis of the DOMA case is offered by Timothy Sandefur, who--while agreeing with the policy outcome of the case--does state his belief that "the Court went out of its way to escape the long-standing limits on its jurisdiction in order to issue this precedent." And I also agree with the way that Ilya Shapiro has put things:

Today, the Court upheld the equal liberty and dignity of all individuals, regardless of sexual orientation with its ruling in United States v. Windsor. This represents a major victory for gay rights, of course, but more broadly vindicates a robust view of individual liberty as protected by the Constitution. It should be axiomatic that the federal government has to treat all people equally, that it has to accept the several states’ sovereign laws on marriage (and many other subjects), and today there were five votes at the Supreme Court for that proposition.

It is now clear that there was simply no valid reason to uphold DOMA Section 3, no reason to deny the equal protection of more than 1,000 federal laws. As Justice Kennedy wrote for the unified majority, “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”

This is exactly the result we were hoping for.

As for the Perry case, which leaves California's Proposition 8 invalidated due to a standing issue, I am glad that the decision functionally means that same-sex couples are able to get married in California, but of course, the fight in California is not over. I imagine that opponents of same-sex marriage will try to find another way to invalidate same-sex marriage in California, and I think that the only decisive way to beat back such an effort is for proponents of same-sex marriage to win a ballot fight on the issue at the polls. In fact, in general, it is preferable for same-sex marriage advocates that this issue is fought and won at the polls from now on, and kept out of the courts as much as possible. Only by winning at the polls will same-sex marriage advocates be able to show that their cause--which I support--is supported by the American people in general; any victory in the courts, no matter how decisive, will continue to cause opponents of same-sex marriage to claim that the right is being validated because of the actions of unelected judges.

Oh, and two quotes that I saw on Facebook are worth repeating here. Here is the first: 

Clinton signed DOMA into law. The Koch Brothers favored same-sex marriage before it became fashionable. But it's not like you'll update your priors based on that.

The second one makes the same point, and is from law professor Jonathan Adler: 

Nice to see so many friends of mine on the Left cheering a Supreme Court decision striking down a federal law enacted by a broad, bipartisan majority and signed into law by President Clinton. (Oh, and did I mention that this decision was supported enthusiastically by the Koch Brothers and urged by Koch-funded entities?)