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QUESTION: And now you've sort of said, no, no, you're way off base, and I want to know why I'm way off base.

MR. WAXMAN: Justice Breyer, you are not way off base.

(Laughter.)

MR. WAXMAN: You're slightly off base, but not way off.

(Laughter.)

QUESTION: There, there, Justice Breyer.

MR. WAXMAN: You've raised -- you've raised three points, and I'll try and address them in turn.

[T]the language is so shoddy and confusing that I would probably flunk a student who submitted it in a final exam question. (And if you know anything about Yale Law School's grading system, that's saying a lot!).

The Post story explains that the drafting was done by a committee rather casually, without much concern for precision, and in order to satisfy various conservative constituencies. Some of the drafters believed that the language banned both same sex marriages and civil unions, others believed that it banned only same sex marriages, and still others believed that it prevented courts from holding that civil unions were required by federal or state constitutional law but did not prevent legislatures from creating such unions by statute.

Marriages, in other words, have not been treated as automatically recognized by other states. Its opponents fear that same-sex marriages will have to be respected all over the country. That is completely unrealistic. In fact, nationwide enforceability is less real now than ever, as a result of the most recent federal statute on the subject. Passed in 1996, the Defense of Marriage Act (DOMA) specifies that no state has to recognize a same-sex marriage entered into in another state. Dozens of state legislatures have leaped on the bandwagon, taking advantage of this invitation by providing, with state DOMAs, that their states will not recognize same-sex marriages from places like Massachusetts.

But for some opponents of same-sex marriage, even the federal and state DOMAs are not reassurance enough. Some of these people worry that the federal law may someday be invalidated as inconsistent with the full faith and credit clause. That's why they seek an amendment to the U.S. Constitution. But the law is probably not unconstitutional. (Granted, that is not a very high recommendation.) Even if constitutional, it is a silly law, motivated by nothing but political grandstanding. That's not a defect that can be cured by enacting it into the Constitution. President Bush would be well advised to shelve his election-year proposals for a constitutional amendment.

There are far more nuanced methods for reconciling diversity and uniformity of laws in this country than a constitutional provision. For example, decades ago, when Nevada's divorce law was the most lenient in the country and was creating problems for other states, the Supreme Court came up with a solution that was quickly nicknamed "divisible divorce." Nevada could dissolve a marriage but could not decide rights to property or child custody without the absent spouse's participation. So, after getting a divorce in Reno, the husband (as it usually was) had to then go home and decide the future of the children and the property in the courts of the marital domicile.

That wasn't intellectually tidy, certainly, but when confronted by burning social issues the Supreme Court has rarely thrown itself upon its sword for the sake of intellectual tidiness. If faced with parallel issues from same-sex marriage, the Supreme Court would probably craft a similar solution. And it would do so without the need for a cumbersome new statute or constitutional amendment. One can only hope that it will do so with greater concern for the rights and interests of the couples themselves, and their innocent children, than the states that are so quick to take a stand against the same-sex marriages that may soon be entered into in Massachusetts and beyond.

At first, the investigation seemed narrowly focused on trying to identify who at the White House provided the information about Ms. Plame to Mr. Novak. But more recently, prosecutors have focused on a Sept. 28, 2003, article in The Washington Post, which said the newspaper had been told that "yesterday, a senior administration official said that before Novak's column ran, two top White House officials called at least six Washington journalists and disclosed the identity and occupation of Wilson's wife."

Prosecutors, referring to the story as "one by two by six," have sought to learn the identity of the senior administration official or the two top White House officials, believing that whoever provided the information to the Post knew who spoke with Mr. Novak.

The justices 'are the only judges in the country, maybe the whole world, who are the sole determiners of their own partiality,' said Steven Lubet, a professor of law at Northwestern University.

Scalia's situation illustrates the point. Federal law requires a judge to disqualify himself when he has 'a personal bias or prejudice . . . or personal knowledge of disputed facts'; when he was involved as a private lawyer in the case at an earlier stage; when he took a position on the case as a government lawyer; when he or a family member has a financial stake in the outcome of the case; or when a family member is involved as a party, a lawyer or a witness.

A judge is also to recuse 'in any proceeding in which his impartiality might reasonably be questioned.'

Scalia flew to Louisiana with Cheney aboard an official aircraft for an extended duck hunting trip with Cheney and seven other men in January. They did so shortly after the court had agreed to hear the Justice Department's appeal of In re. Cheney. In that case, the White House is battling to keep confidential the internal records of the vice president's energy policy task force.

Scalia's travel with Cheney was first reported by the Los Angeles Times. Scalia has since said that no reasonable person could conclude that his activity with Cheney would affect his impartiality in the case.

We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by - as one witness here did - according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.