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  1. As the quoted piece points out, it kills mandates across the board though.

    You have to have Medicaid? Nope, States have the right to spend their own money.

    Medicare? Same thing.

    Prop 8? Well since states can define marriage…

    Of course, don’t expect any liberal to honestly argue those points, precident means to them “Any previous ruling that supports my POV.”

    Comment by The_Livewire — July 9, 2010 @ 6:29 am - July 9, 2010

  2. We all know with liberals the 10th Amendment only cuts one way, to remove federal barriers the lower courts’ imposition of liberal policies. If it had been a federal law imposing gay marriage on the states, there would have been no tenth amendment problem for this activist liberal judge.

    Comment by eaglewingz08 — July 9, 2010 @ 7:54 am - July 9, 2010

  3. My first reaction was one of delight in the soundness of the judicial reasoning.

    If gay marriage is a state’s right, so is murdering fetuses. If you have to cross state lines to get your fetus killed, so, also will you have to cross state lines to get yourself same-sex married. But, just as you come back home no longer pregnant, so do you also come back home no longer same-sex married.

    Folks really need to read and understand the Dred Scott decision. It laid the clear roadmap for the judicial reasoning in this case.

    I lived through the post war era of segregation. It was chock-a-block full of state’s rights and the Federal government found making inroads to be very difficult until they stretched the Commerce Clause beyond all recognition.

    The point is, the 10th Amendment is a two edged sword and liberals have every reason to hate and fear it.

    This case is a pyrrhic victory for the liberals if it survives. It is judicial activism’s worst nightmare, It strikes at the very heart of much “settled” law.

    My second reaction was one of delight in anticipating how the liberals will spin this.

    Comment by heliotrope — July 9, 2010 @ 9:22 am - July 9, 2010

  4. I read the decision last night. I, too, found the 10th Amendment reasoning very interesting. Personally, I think it’s consistent with settled law. Settled law is that the states define marriage. Heliotrope, you’re quite right about coming “back home no longer same-sex married”.

    Livewire, I think I’m following you, but I’m not sure I agree with your conclusion. The way I read this decision (were it to stand, which it probably won’t) is that in states where same-sex marriage is allowed, married gay couples would be entitled to the Federal benefits. But if a state doesn’t allow same-sex marriage, no benefits for you. No reason for a state to stop with Medicaid/Medicare. In other words, I don’t read this decision as imposing same-sex marriage in order to get those funds.

    Either way, obviously this is not the end of the issue.

    Comment by Neptune — July 9, 2010 @ 10:27 am - July 9, 2010

  5. Sure, and states should decide whether or not they have slaves, which sex gets to vote, whether children should work, etc. etc. Federal government is always evil, yada, yada, yada.

    Comment by Ashpenaz — July 9, 2010 @ 10:54 am - July 9, 2010

  6. 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.”

    Woo-hoo! :-) ILoveTheTenthAmendment! (Which *does in fact* undermine the constitutionality of wide swaths of Federal activity; not “would”)

    Comment by ILoveCapitalism — July 9, 2010 @ 10:56 am - July 9, 2010

  7. Love the result, married 6 years today and am in my relationship 25 years in August. Want my spouse to get SSA benefits should I die, after all I paid into the system for over 38 years! Want to stop paying taxes on her health benefits and want to file federal taxes jointly.
    These are the only reasons I got the piece of paper, otherwise I am not stuck on the term “marriage”.

    Comment by Joanne — July 9, 2010 @ 10:58 am - July 9, 2010

  8. Want to stop paying taxes on her health benefits and want to file federal taxes jointly.

    Those are changes to the tax code. They require no redefinition of marriage.

    By the way, the Obama Party explicitly blocked an amendment to the health care “reform” bill which allowed for exemption for taxation from non-spousal beneficiaries, because it decreased tax revenue too much.

    Want my spouse to get SSA benefits should I die, after all I paid into the system for over 38 years!

    Well, if your spouse paid in virtually anything, what you’re going to find is that their individual benefits are higher than survivor benefits.

    Also, if you’re recognized as married by the Federal government, your income from Social Security is capped at a household level — which is generally lower than the combined amount that two single individuals would receive.

    Comment by North Dallas Thirty — July 9, 2010 @ 11:33 am - July 9, 2010

  9. Neptune,

    If the Federal Government can’t put limitations on the federal program because it ‘interferes with the right of the States to define marriage’ how could they put a universal cut off point for when someone is ‘poor’ for Medicaid? Surely the state can define ‘poor’ Or how could the Federal Government regulate a doctor’s Medicare Reimbursements? If this stands, the fun that could be had with lawsuits is enormus.

    Comment by The_Livewire — July 9, 2010 @ 11:36 am - July 9, 2010

  10. Doesn’t this also mean that there won’t be or maybe can’t be a national way to put gay marriage rights in all states? This effectively says that states can make their own marriage policies and thus you can’t force places like Alabama and Mississippi to have it. Its a victory in the sense it finally begins to deal with DOMA but it means there will never be a Roe v Wade type of decision that allows gay marriage is all states. I am sure that can’t be what liberal activist wanted in the long run, as a state by state battle will take decades to do.

    Comment by darkeyedresolve — July 9, 2010 @ 12:08 pm - July 9, 2010

  11. Neptune,

    “Settled” law is full of federal rules that are not clearly outside the purview of the 10th amendment. I would cite affirmative action as one of the most obvious. Since Brown in 1953, the feds have walked all over states rights and defiantly ignored the 10th Amendment.

    There is a mare’s nest of federal programs and entitlements which could not stand the scrutiny of the 10th amendment that this judge has taken in hand.

    Sure, I am tickled that civil rights came to the black world. But the silly detritus left (such as “social justice”) by the way the fed’s tromped all over the states is no lasting gift to our Republic.

    There are ideas which find their time and place. Striking down racial segregation was one of them. How it would have played out from public pressure instead of federal over action we can never know. The 14th amendment was clear enough for federal action without getting into all the commerce clause distortion that enabled much of federally directed change.

    The point is, liberals fear the 10th amendment with good reason. It messes with their judicial activism and throws things back on the local and state governments. They hate the way a republic works. They favor judicial dictatorship over messy debate.

    Comment by heliotrope — July 9, 2010 @ 12:30 pm - July 9, 2010

  12. I would be very pleased if a consistent application of the 10th amendment were in our future. There are so many things the federal government does that are not authorized by the constitution.

    Unfortunately, I suspect that this judge simply didn’t like the law and so article shopped the constitution to find something to justify it. If I’m wrong and his belief in the 10th amendment came prior to his handling of this case then I happily take it back.

    Comment by John — July 9, 2010 @ 1:01 pm - July 9, 2010

  13. Unfortunately, I suspect that this judge simply didn’t like the law and so article shopped the constitution to find something to justify it.

    Bingo!

    The decision is ludicrous. According to this nimrod of a judge, Federal benefits, which are paid for and administered by Federal levies and under Federal laws, must be doled out at the whim of the states.

    I agree with Livewire. Since the Federal government now has no right whatsoever to administer or refuse benefits from its own program if a state disagrees, California should simply redefine its entire welfare system so that everyone is eligible for Federal benefits and order the Federal government to fund it.

    That ought to bring some sanity to this very quickly.

    Comment by North Dallas Thirty — July 9, 2010 @ 1:56 pm - July 9, 2010

  14. Livewire,

    You asked: If the Federal Government can’t put limitations on the federal program because it ‘interferes with the right of the States to define marriage’ how could they put a universal cut off point for when someone is ‘poor’ for Medicaid?

    I think the Federal Gov can. What I’m saying that I read in this decision is that up until DOMA, the government always relied on the states to define marriage. And that what the states allow already varies. Judge Tauro notes an example that the age a couple may be married varies, but the Federal Gov has never imposed a minimum age. This is in contrast to the other rules governing entitlement programs, which define who is poor, what doctor’s get for reimbursement, etc., and (unless I’m mistaken, in which case I know you guys will correct me :-) ) always have. But they have also always relied on the state to say who is married and applied that state’s definition to those wishing to claim a Federal benefit under that status.

    If I can offer another perspective, look at it from the spending power angle. The Federal government always has the power to attach strings to it’s spending (the drinking age at 21 for highway funds, or the Solomon Amendment as examples). DOMA doesn’t do that. Section 3 of DOMA broadly applies well-beyond the spending power to reach into areas the states have traditionally been responsible for.

    Helio, I get what you’re saying about settled law. This entire issue of federal programs is a big debate anyway (or should be, no matter which side of the fence one is on). My point is only that which I state in response to Livewire (in this comment).

    Although as I think about it, do we really want the Federal gov to define marriage when that has always been the role of the states? And if not, if a state chooses to allow gay marriage, wouldn’t we want to then give the gay marrieds of that state the ability to claim that status? Because the individual state did that within it’s power?

    Comment by Neptune — July 9, 2010 @ 3:33 pm - July 9, 2010

  15. This is in contrast to the other rules governing entitlement programs, which define who is poor, what doctor’s get for reimbursement, etc., and (unless I’m mistaken, in which case I know you guys will correct me ) always have.

    Nope. Eligibility for Medicaid, for example, is set by the states. As the second page of this shows, for example, the states vary wildly in terms of who is and isn’t qualified for Medicaid.

    And prior to the creation of Medicaid, each state was responsible for their own welfare program, with the Federal government not imposing any types of rules.

    So again, the Tenth Amendment argument here, if applied, effectively invalidates any Federal program in which the states have any say whatsoever.

    On several levels, I don’t mind this at all.

    Comment by North Dallas Thirty — July 9, 2010 @ 4:22 pm - July 9, 2010

  16. NDT, thanks for the correction. I wasn’t sure, so I’m glad you shared more accurate information.

    Comment by Neptune — July 9, 2010 @ 5:50 pm - July 9, 2010

  17. Judge Tauro’s basis in the DOMA cases before it were based not only the Powers Clause of the 10th Amendment, but also the Equal Protection Clause of the 14th Amendment. This will make any appeals even more interesting.

    Comment by Man — July 9, 2010 @ 6:04 pm - July 9, 2010

  18. Sure, and states should decide whether or not they have slaves, which sex gets to vote, whether children should work, etc. etc. Federal government is always evil, yada, yada, yada.

    Ash,
    I like you, but I really must wonder why you even bother coming here when this comment so clearly illustrates that you have no interest whatsoever in even listening to us when we tell you what we believe.

    What is the point of even coming here if you’re not going to debate what we actually believe, but instead set up ridiculous straw men for yourself to bravely knock down?

    Youre not even attempting to convince anyone else that your point of view is right, so all that’s left to conclude is that you’re desperately trying to convince yourself that it is. If you’ve succeeded in that, it does not speak well for your intellect.

    Comment by American Elephant — July 9, 2010 @ 6:32 pm - July 9, 2010

  19. It will be very interesting to see how this plays out politically. It seems that every time the judiciary tries to push gay marriage, it backfires and causes anti-gay marriage sentiment to surge in the electorate.

    This judge may have just made gay marriage an election issue again, and not in a way that will help Democrats or gay marriage advocates.

    This decision may also have the effect of placating some on the gay left, and getting more of them to stay home in November. After all, a Republican congress can’t do anything to vacate a judicial constitutional ruling. Only a higher court or Constitutional amendment can do that.

    Comment by American Elephant — July 9, 2010 @ 6:43 pm - July 9, 2010

  20. I apologize if it looks like I’m not reading and listening. In fact, I come to this blog in order to learn. I actually have changed and refined my opinions based on the various threads.

    However, my goal as a blogger is to deliver the perfect bon mot. To design the exact epigram. I want to be the Quentin Crisp of GayPatriot.

    Comment by Ashpenaz — July 9, 2010 @ 8:26 pm - July 9, 2010

  21. I want to be the Quentin Crisp of GayPatriot.

    To quote the eternally hot Tom Skerrit in Top Gun, “That’s pretty arrogant considering the company you’re in. I like arrogant.”

    Comment by Eric Olsen — July 9, 2010 @ 9:01 pm - July 9, 2010

  22. I apologize if it looks like I’m not reading and listening. In fact, I come to this blog in order to learn.

    ROFL :-)

    Comment by ILoveCapitalism — July 9, 2010 @ 9:13 pm - July 9, 2010

  23. “We conservatives should welcome a decision limiting the federal government’s regulatory role to those powers delegated to it by the Constitution.” B. Daniel, you only say that because this decision went the gay way. Had it gone the opposite way you wouldn’t take solace in the fed’s power being restricted. Gay “conservatives”, like their leftie counterparts, will use any means to get gay marriage imposed on society. Trying to make support for gay marriage a conservative position by claiming it would limit federal power is a stealthy strategic move straight out of the Left’s playbook. It’s not about gay marriage, noooooooo! It’s about limiting federal power; legalizing gay marriage is just the best way to do that. Do you really think social conservatives are stupid enough to fall for that? Sheesh!

    Comment by Seane-Anna — July 9, 2010 @ 10:34 pm - July 9, 2010

  24. However, my goal as a blogger is to deliver the perfect bon mot. To design the exact epigram. I want to be the Quentin Crisp of GayPatriot.

    Ash, you do know that liking other men’s penises isn’t some sort of character flaw that you have to compensate for by trying to be a genius, right? ‘Cause a lot of gay men seem to get stuck on this point…

    Roger De Bris: Ah, Messrs. Bialystock and Bloom, I presume — if you’ll forgive the pun!
    Leo Bloom: [sotto voce] What pun?
    Max Bialystock: Shaddup, he thinks he’s witty…

    Comment by Throbert McGee — July 9, 2010 @ 11:42 pm - July 9, 2010

  25. Seane-Anna,

    Several states have recognized gay marriage. They did so under the 10th Amendment. The result has been talk of an amendment to the US Constitution. That talk was short circuited by the Clinton inspired DOMA.

    Now a judge finds DOMA in violation of the 10th Amendment. If the decision is upheld, social conservatives will go back to the Constitutional Amendment process. That is how the founding fathers set the system up.

    Meanwhile, the 10th Amendment takes on valuable new life for the social conservatives.

    Frankly, I think the judge was fishing around for some way to justify invalidating DOMA and he hooked “Jaws.” The 14th Amendment lay dormant for decades before it caught on. The power of the states in the 10th Amendment may have been unleashed on judicial activism by an activist in judicial robing.

    Comment by heliotrope — July 10, 2010 @ 2:23 am - July 10, 2010

  26. Now a judge finds DOMA in violation of the 10th Amendment. If the decision is upheld, social conservatives will go back to the Constitutional Amendment process. That is how the founding fathers set the system up.

    I predict the Equal Protection argument will unfortunately be overturned by this SCOTUS while the 10th Amendment argument has a slight chance of success – if they can get Kennedy’s vote and the “blocs” on the Court remain as most everyone guesses. It is a clever argument using the 10th Amendment and probably the strongest I’ve seen yet, but by no means a sure thing. Even if SCOTUS upholds that argument another attempt at passing FMA will meet the same fate it has met each time before: failure. Soc-cons will stir up a lot of emotion and even if the GOP holds a majority in Congress next year will never find 2/3′s support in both Houses to pass such an amendment. If by some ‘miracle’ they get it through they’ll never find the requisite 38 states to ratify it. The best chance they’d have at an amendment is to require SSM to be enacted by the legislatures of the states and allow other states to refuse to recognize such legal unions from others. Even that though would have a very slim chance of being ratified.

    Meanwhile, the 10th Amendment takes on valuable new life for the social conservatives.

    For fiscal cons and libertarian-minded folks as well.

    Comment by John — July 10, 2010 @ 2:17 pm - July 10, 2010

  27. [...] GayPatriot » Tenth Amendment Jurisprudence Serves to Invalidate … [...]

    Pingback by Financial Overhaul Provision to Promote Diversity Hiring in Federal Agencies Stirs Backlash | MorallyRight.org — July 11, 2010 @ 1:41 am - July 11, 2010

  28. We’re doing it wrong.

    Note that the 10th amendment says “reserved to the States respectively, *or to the people*” I don’t just favor a federal government of limited powers, I favor *government* of limited powers.

    Why do we let The State tell us who we may marry? It’s not a proper function of government.

    When you give The State that power (no matter at what level) you give religious busybodies a lever to use against you.

    Comment by MaggieL — July 11, 2010 @ 11:27 pm - July 11, 2010

  29. MaggieL,

    I believe it was the intent of the founders for the states to be ‘mini-labs’ of democracy, subborned to the government. so, for example, in the Founders’ vision, Maine would allow SSM, Virginia would have Fred, and Georgia would not have either. Meanwhile Pennsylvania would remove the government from defining marriage entirely, so that the people could partner with whomever or however they wished, but not offer or expect government recognition.

    Then the laws of supply, demand, and economy would sort it out.

    IMNSHO of course.

    Comment by The_Livewire — July 12, 2010 @ 7:00 am - July 12, 2010

  30. When you give The State that power (no matter at what level) you give religious busybodies a lever to use against you.

    Sharia is rearing its ugly head in Canada and England not because of religious busybodies, but because of daffy liberals.

    If the people make a mini-theocracy of the state, those who can not live in a mini-theocracy will just have to fight it with reason or decamp.

    What are the greatest threats from religious busybodies? No gay marriage? Assaults on abortion? Making kids pray in school at the point of a lightening bolt? A Puritan posted in every bedroom?

    What scares you?

    Comment by heliotrope — July 12, 2010 @ 10:35 am - July 12, 2010

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