Jack Balkin has a salient analysis of today’s court opinions regarding DOMA, which lean on 5th, and (surpsiginly/ironically) 10th Amendment arguments.
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.
I am not going to rehash the arguments here, Balkin does a great job of that and you should read the full post. The 10th argument was particularly intriguing: marriage is a state regulatory issue and thus the federal government has no Constitutional authority to encroach upon that power, especially to force a state to discriminate against its own citizens (the equal protection issue). Balkin points out, however, that there are some inconsistencies in Judge Tauro’s logic. More importantly, he points out that the 10th Amendment argument, if held to be true, would lay the groundwork for the emasculation of a wide swath of federal powers and programs, including health care, social security, and Medicare/Medicaid, which are all in many ways tied to family-oriented programs. I am jumping for joy as a Conservative who would love to cut back the welfare state and resuscitate the 10th Amendment, but Balkin is right that this is not the way in which progressive gay rights advocates want to play ball.
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.
It’s really hard to find good, timely analysis of court opinions. This one is a biggie, and Jack has done a great job boiling it down.