And Now The Left Picks Up That Old Tenth Amendment

Rachel Slajda at TPM:

A federal judge ruled today that part of the Defense of Marriage Act, which defines marriage as between a man and a woman, is unconstitutional.

Judge Joseph Tauro, of U.S. District Court in Boston, issued rulings on two separate cases today.

“This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status,” Tauro wrote in the decision for Massachusetts v. Health and Human Services.

“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid,” he wrote.

Ed Morrissey:

The 10th Amendment application seems a little odd to me, especially in the case of Medicaid coverage.  That program uses federal funds in part to cover medical bills.  The federal government would therefore seem to have jurisdiction on how its own funds get spent, although the state should have the same latitude with its own funds.  After all, DOMA doesn’t tell states that it can’t recognize same-sex marriages, but just exempts marriage recognition from the full faith and credit clause of the Constitution so that other states don’t have to follow suit.  It also retains federal jurisdiction on marriage definition for the purpose of spending federal money on partner benefits, which also has nothing to do with the 10th Amendment.

If the Supreme Court endorses this stand, though, it sets up an interesting question for conservatives who express support for better enforcement of the 10th Amendment.  Can they get behind this interpretation?  And will this sudden interest in applying the 10th Amendment by the judiciary start spreading to other issues, especially in rethinking a century’s worth of decisions on the commerce clause?

Andrew Sullivan:

And so one of the principles held most dearly by some of the tea-partiers must logically hold DOMA unconstitutional. Much more on this tomorrow. But let me note right now the political ironies of this. The right is hoist on their own federalist petard and will now have to choose whether states’ rights or marriage inequality is more important to them. The Obama administration, meanwhile, now has to decide whether it will further defend DOMA in the courts, fighting against the principles of the tenth amendment so dear to conservatives or the fifth amendment so dear to liberals. The incoherence of the Republicans and the cowardice of the Democrats are now exposed more than ever.

Or they could both listen to Ted Olson. This issue is neither right nor left; it is about human dignity, civil equality and civil rights. And it is way past time the American polity grappled with this, instead of exploiting it for mutual partisan purposes.

Jack Balkin:

I am a strong supporter of same sex marriage. Nevertheless, I predict that both of these opinions will be overturned on appeal. Whether one likes it or not– and I do not– Judge Tauro is way ahead of the national consensus on the the equal protection issue. I personally think that discrimination against gays and lesbians is irrational, but a federal district court judge– who must obey existing precedents, and who is overseen by a federal judiciary and a Supreme Court constituted as they currently are–is in a very different position than I am.

Perhaps more importantly, his Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.

To be sure, there is something delightfully playful and perverse about the two opinions when you read them. Judge Tauro uses the Tenth Amendment– much beloved by conservatives– to strike down another law much beloved by conservatives–DOMA. There is a kind of clever, “gotcha” element to this logic. It is as if he’s saying: “You want the Tenth Amendment? I’ll give you the Tenth Amendment!” But in the long run, this sort of argument, clever as it is, is not going to work. Much as I applaud the cleverness– which is certain to twist both liberal and conservative commentators in knots– I do not support the logic.

The arguments of Judge Tauro’s two opinions are at war with each other. He wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families. Indeed, social conservatives have often argued for using the federal government’s taxing and spending powers to create certain types of incentives for family formation and to benefit certain types of family structures; so too have liberals.

In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?

Dale Carpenter:

Analytically, the Gill decision is like the state court decisions rejecting common rationales for limiting marriage to opposite-sex couples.  The court doesn’t hold that sexual-orientation discrimination is subject to strict scrutiny or that there is a fundamental right to marry that includes same-sex couples. Instead, applying the increasingly non-deferential rational basis test, the court concludes that there is no legitimate purpose rationally served by denying federal benefits to same-sex married couples while giving the same benefits to opposite-sex married couples.  Previous state court decisions, like Goodridge, have also held that traditional marriage limitations are irrational.

What makes the case a bit different from some of the state cases are (1) the Obama Justice Department’s abandonment of the classic rationales for limiting marriage to its traditional understanding, and (2) the peculiar federal dimension involved.

Congress gave four basic reasons for Section 3: (1) encouraging responsible procreation and child-bearing, (2) promoting traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) conserving scarce resources. The Obama Department of Justice conceded that none of the four were rationally served by Section 3. Op. at p. 23.

Nonetheless, the court attacked them. As for the first — encouraging responsible procreation and child-rearing — the court treats as settled the debate over whether children do as well with gay parents as with heterosexual ones.  Op. at 23–24. It is not even a rationally debatable question, says the court, based on the consensus among learned family experts that has emerged since 1996.  But even if that question were rationally debatable, refusing to recognize same-sex marriages does nothing to make heterosexuals more responsible procreators and parents. Op. at 24. And, with what I’m guessing was particular glee, Judge Tauro cites Justice Scalia’s dissent in Lawrence v. Texas for the proposition that the ability to procreate has never been a precondition for marriage. Op. at 24–25. Justice Scalia’s dissent in Lawrence is effectively the first draft of a brief for SSM.

The second congressional rationale — promoting the traditional institution of marriage — was unavailing since it’s not likely that state-recognized same-sex spouses would seek opposite-sex marriages. And punishing same-sex spouses in order to make opposite-sex marriages seem more desirable would be just another way to express disdain for a politically unpopular group. Op. at 25–26.

The third rationale — promoting traditional morality — is insufficient after Lawrence.  Op. at 26. No opinion in Lawrence was clearer on the constitutional demise of morality than was Justice Scalia’s dissent.

And the final congressional rationale — conserving resources (by providing them only to certain married couples) — could not explain why Congress chose to draw the line in this particular way. Op. at 26–27.

That left the DOJ to hypothesize some possible justifications for Section 3. One was to say that Congress had an interest in preserving the status quo at the federal level on a contentious and evolving social question.  Congress had a legitimate interest, said the DOJ, in staying out of the debate over marriage and letting the states resolve it.  Judge Tauro responded that in fact DOMA changed the status quo at the federal level — from one in which the federal government had historically relied solely on states to determine the meaning of marriage to one in which Congress would now weigh in with its own understanding.  Op. at 28–35.

A related justification, said the DOJ, was Congress’ interest in moving incrementally on the issue.  The court rejected that justification on the ground that no federal administrative burden was eased by excluding married same-sex couples and that DOMA itself barred incremental evolution at the federal level. Op. at 35–37.

What also makes Gill (potentially) distinguishable from the state marriage decisions is the federal context.  Failing a legitimate justification, the court says, there is nothing to explain the 1996 federal law except animus against gay people. That animus was displayed in the cavalier way Congress passed DOMA without examining its extensive effects, op. at 5–6, and in the moral condemnation expressed in both the statutory text and in many statements by members of Congress. Op. at 5 (noting congressional remarks) and at 5, 26 (noting congressional moral disapproval of homosexuality).

Joe Sudbay at AMERICABlog:

Today, we celebrate. But, this is only the beginning of the process. We’ll have to find out if the Obama administration plans to appeal these rulings. (Note to Obama administration: Please don’t.)

UPDATE: More Balkin

Noah Millman at The American Scene here and here

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Filed under Gay Marriage, The Constitution

One response to “And Now The Left Picks Up That Old Tenth Amendment

  1. Pingback: What We’ve Built Today « Around The Sphere

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