DOMA and the 10th Amendment
Yale lawprof Jack Balkin, a gay marriage supporter, nonetheless thinks yesterday’s ruling by a federal judge declaring the Defense of Marriage Act unconstitutional is likely to collapse on appeal.
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.
The arguments of Judge Tauro’s two opinions are at war with each other. He wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families. Indeed, social conservatives have often argued for using the federal government’s taxing and spending powers to create certain types of incentives for family formation and to benefit certain types of family structures; so too have liberals.
In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?
That strikes me as right. While the Supreme Court has become more fond of the 10th Amendment — which most of us thought had been a dead letter since, oh, the Civil War — in recent years. But accepting Tauro’s interpretation would unravel much of the system that has been built up starting with the New Deal and given credence by more SCOTUS rulings than you can shake a stick at.
Like Steven Taylor, I tend to think that the Equal Protection and Full Faith and Credit Clauses are more solid rationales for overturning DOMA. Balkin thinks that the courts have likely not caught up to that interpretation of the former.