Thursday, July 08, 2010

Where's Your Federalism Now?

A federal court has just struck down Section III of the Defense of Marriage Act as unconstitutional. There are actually two decisions here: the first holding that DOMA violates the equal protection and due process clauses of the constitution, and the second claiming it violates the 10th Amendment.

I don't have time to give these cases my full attention right now, but obviously this is very exciting. And of course, it is particularly exciting to see the 10th Amendment angle, as I greatly look forward to conservatives dropping their commitment to state's rights like a bad habit in the coming, well, minutes.


joe said...

You know the flip side of that is liberals jumping onto states rights as a vehicle for their preferred policies like it's 1861.

(He said, watching the Law & Order marathon.)

David Schraub said...

I'm perfectly happy to rely on the Equal Protection angle. The 10th Amendment just has the added benefit of making conservative hacks squirm.

PG said...

I'm trying to think of an instance of a majority of liberals supporting a federal statute that interfered with state regulation of marriage (or any issue as completely core to what states have sovereignty over as marriage is). None coming to mind.

N. Friedman said...

Judge Tauro is a terrific judge. I remember him beginning back in the days when he was chief judge of the District Court in Massachusetts. He is an elder statesman at this point but is still going strong.

I had a case in front of him in the not too distant past. He treats lawyers very well, is very attentive and, alas, saw the justice in my client's cause - which puts him in my highest regard [SMILE].

I respect his opinion. It will be interesting to see what happens to the case on appeal

joe said...

PG, it's affecting interstate commerce, isn't it? ;)

To be clear, I'm not trying to slam liberals. My point is that I don't really think a consistent judicial philosophy is really all that important to most judges, let alone the rest of us.

I'm inclined to say that's fine. If a certain approach to judging gives us bad outcome, it doesn't lend itself to us marrying that approach. So cry havoc and let loose the old school judicial activism, I say (We can still ridicule people, likely conservative-leaning, who claim to have a singular judicial philosophy in the face of the evidence.)

N. Friedman said...

There have been some writers who are noting an historical error lying beneath Judge Tauro's analysis. See this by The Washington Post's Charles Lane. Lane writes:

Yet what is noteworthy about the Utah case is that Congress leveraged its power over Utah the territory into power over Utah the state. As a condition of admission to the Union, Utah’s people gave Congress a permanent veto over their marriage laws – a veto that remains on the books to this day. The fact that today’s Mormons are proponents of heterosexual monogamy and opponents of same-sex monogamy, is deeply ironic, but legally irrelevant.

What’s more, Utah is not the only state in which this situation obtains. The language of the Utah Enabling Act was repeated, word-for-word, in the laws that admitted New Mexico, Arizona and Oklahoma as states in the early 20th Century. In short, the federal government has shared authority over the marriage laws of four U.S. states.

So it is not quite correct to say, as Tauro does, that “DOMA marks the first time that the federal government has ever attempted to legislatively mandate a uniform federal definition of marriage – or any other core concept of domestic relations, for that matter,” or that “as of 1996 the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law.”

Steve Rappoport said...

The Tenth Amendment argument confuses me. Judge Tauro said that DOMA's section 3 interfered with Massachusetts' right to define the institution of marriage by forcing the state to discriminate against its own citizens so as to be eligible for federal funding in federal-state partnerships. To the judge, this means that the statute "plainly encroaches" on the state's right to determine marriage. This does not seem right.

Congress gets to determine what federal funds are, and are not, to be used for. In so limiting its spending, Congress is not barring the state from deciding who can get married; rather, it is merely stating that the state's decision will not affect how the federal government spends its money. The fact that gay marriage does not does not bring with its federal benefits that are available to opposite-sex couples does not interfere with the state scheme; the state still decides who can get married, but it cannot decide how the federal government should spend its money. The fact that the state scheme is not as effective as it otherwise would be does not sound like a winning argument that the federal ban on recognizing same-sex marriage violates the Tenth Amendment.

joe said...

Steve, is DOMA just refusing to extend some benefits to same-sex couples, or is it refusing a substantial amount of federal funding earmarked for other purposes, in order to provide an almost irresistible pressure to conform?

The Supreme Court has said, for example, that the Federal government can condition a certain percentage of highway funds on states setting their drinking age to 21, but at some point it just becomes coercion.

Steve Rappoport said...

Joe, this is the text of Section 3 of DOMA:


(a) IN GENERAL- Chapter 1 of title 1, United States Code, is amended by adding at the end the following:

`Sec. 7. Definition of `marriage' and `spouse'

`In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word `marriage' means only a legal union between one man and one woman as husband and wife, and the word `spouse' refers only to a person of the opposite sex who is a husband or a wife.'."

Then follows a cerical amendment adding this subject to the table of subjects.

As you can see, the provision sets forth the federal definition of marriage; it does not in terms tell the states what to do. I have no doubt that it fits within South Dakota v. Dole.