Last Call

Finally, somebody does something useful with the Tenth Amendment.

The federal law banning gay marriage is unconstitutional because it interferes with the right of a state to define the institution and therefore denies married gay couples some federal benefits, a federal judge ruled Thursday in Boston.

U.S. District Judge Joseph Tauro ruled in favor of gay couples' rights in two separate challenges to the Defense of Marriage Act, known as DOMA, a 1996 law that the Obama administration has argued for repealing. The rulings apply to Massachusetts but could have broader implications if they're upheld on appeal.

The state had argued the law denied benefits such as Medicaid to gay married couples in Massachusetts, where same-sex unions have been legal since 2004.

Tauro agreed and said the act forces Massachusetts to discriminate against its own citizens in order to be eligible for federal funding in federal-state partnerships.

The act "plainly encroaches" upon the right of the state to determine marriage, Tauro said in his ruling on a lawsuit filed by state Attorney General Martha Coakley. In a ruling in a separate case filed by Gay & Lesbian Advocates & Defenders, Tauro ruled the act violates the equal protection clause of the U.S. Constitution.

"Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification the Constitution clearly will not permit," Tauro wrote.

(More after the jump)



However, there's an excellent Devil's Advocate argument by Jack Balkin that basically states that Tauro's precedent will be seized upon by Tea Party advocates to challenge a host of federal government programs (emphasis mine):

Moreover, while insisting that marriage is a distinctly state prerogative, Judge Tauro argues that the federal constitution makes it irrational for the federal government to discriminate between same and opposite sex couples. But if so then it follows that it would also be irrational for a state government to discriminate, because the test under the Fifth Amendment equal protection component and the Fourteenth Amendment's Equal Protection Clause (which applies to the states) is the same. Thus Judge Tauro is saying that marriage is none of the federal government's business, except, of course, when a federal court thinks otherwise. He is, in essence, laying the groundwork for an equal protection challenge to state marriage laws in virtually every state. This is not a result that is particularly respectful of state prerogatives!

Finally, Judge Tauro's attempt to limit federal power through the Tenth Amendment so that it does not interfere with state prerogatives might delight members of the contemporary Tea Party movement (at least if it wasn't aimed at DOMA), but it should give most Americans pause. The modern state depends heavily on the federal government's taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA's direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable-- and unconstitutional-- to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.

There is much to admire in Judge Tauro's bravery in writing these opinions, and in his forthright declaration that the federal government's policy is unjust and unreasonable. His two opinions are wild, audacious, and fearless in their logic. But for the same reason, they will and should be quickly overturned. I believe that the civil rights of gays and lesbians will someday be vindicated by legislatures and courts. But not in this way.

The Tenth Amendment is still the Tenth Amendment, and Balkin has a very persuasive point that this precedent opens the door wide on a direct assault to nearly any federal program on the basis that any federal law that treats individual states differently is discriminatory and therefore unconstitutional, rather than having a uniform law that applies to every state equally. 

I have to side with Balkin here.  This is a minefield of a decision, and it needs to be overturned immediately, or the Tea Party's going to use this to dismantle every social program the Feds have.

[UPDATE] Howie Klein counter-argues that Balkin's argument doesn't work, because the Tauro decision focuses only on the specific case of DOMA, that is "couples who are married".

As a matter of fact, the petitioner in one of the two cases, Gay & Lesbian Advocates & Defenders (GLAD), intentionally crafted its complaint as narrowly as possible. GLAD has a splendid webpage detailing the background, strategy, and precise scope of the suit.

Here is perhaps the most immediately pertinent chunk:

What This Case Does and Does Not Do.

This case only addresses DOMA Section 3. It seeks to end discrimination by the federal government against people who are validly married and ensure they are not denied rights, protections and responsibilities afforded to other married persons.

If GLAD’s lawsuit is successful, then DOMA Section 3 could not be applied to federal tax laws, Social Security laws, benefits programs for federal employees, retirees and their surviving spouses, and the regulations and practices governing issuance of passports in states where people can marry. It would establish an important principle that could be used in other cases and in advocating repeal.

If a non-resident couple were married in Massachusetts or Connecticut and their home state did not recognize their marriage, then, as a general matter, a favorable result in this case will not allow them to seek federal legal protections.

By design, this lawsuit is limited to particular programs and does not seek to invalidate DOMA Section 3 in its entirety. The U.S. Supreme Court has made clear that it strongly disfavors attempts to strike a federal law in its entirety and prefers to evaluate cases with concrete examples of how a federal law as applied violates constitutional rights.

But that still means this will almost certainly head for the Supreme Court as a result.   If Balkin's right, which I believe he is, this will get overturned for the reasons I stated earlier and this will eventually go all the way to the Roberts Court.  If Klein is right...then the Roberts Court will still decide this one.

And I'm not at all sure what they will do.