When I first read U.S. District Judge Joseph Tauro ruled that portions of DOMA were unconstitutional because the legislation “interferes with the right a state to define marriage“, I wondered which provision in the federal constitution he used to justify his ruling.
Now I like the result because I believe that same-sex partners should be allowed Medicaid benefits, the issue in this case. And those seeking those benefits had sought the protections of marriage. But, I feared it may have been based on shady constitutional logic where the judge (or justice) found his justification in illuminations refracted from reflections in the charter’s penumbrae.
Thus, when I looked into matter, I was delighted to learn that Judge Tauro had rooted his decision in the Tenth Amendment. That provision reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” So, favoring a federal government of limited powers, I think he’s on pretty solid ground.
But, from Volokh, we learn that some liberals are wary of rooting the decision in this oft-ignored provision:
Jack Balkin has an interesting post on today’s two Defense of Marriage Act cases from the federal District of Massachusetts, Gill v. Office of Personnel Management, and Massachusetts v. HHS. The latter case found DOMA unconstitutional, as applied to Massachusetts, because DOMA violates the Tenth Amendment by infringing the state’s traditional core sovereign power of defining lawful marriages. The most important parts of the Tenth Amendment analysis are at pages 28–36 of the opinion. Balkin is concerned because the Judge Tauro’s “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.”
If you have time, read all of Balkin’s post; I thought that David Kopel did a good job of summarizing the key points–at least those I wanted to address, so I just quoted his introduction above. (His post is also a good one.) We conservatives should welcome a decision limiting the federal government’s regulatory role to those powers delegated to it by the Constitution.
And I believe states should define marriage.
All that said, a federal benefit is at issue. So, maybe Judge Tauro’s opinion misinterprets the sweep of the Tenth Amendment. But, would that benefit be held unconstitutional under the Tenth Amendment? (So, we have an interesting irony here–which I’ll try to address in a subsequent post.)
I like the ruling, but I don’t think it will pass muster will federal appellate courts or, for that matter, the Supreme Court. The liberal justices would be reluctant to invoke the Tenth Amendment, given the precedent it would set. The conservative justices would likely contend the Tenth Amendment does not apply when a federal benefit is at stake.
For now, I’ll give this opinion two cheers. If I were a betting man, I’d bet on it being overturned. If it’s not, the appellate (or Supreme Court) decision would be a ruling to warm the hearts of many on the right as the Court be on record supporting limiting the powers of the federal government. This time, something which benefits gay people would be most welcome among principled conservatives.
Also at Volokh, Dale Carpenter weighs in on the ruling, He doesn’t “think Gill is one of the stronger judicial opinions supporting SSM.” And Dale always offers sound analysis on matters jurisprudential, just read the whole thing.