Yale law professor Jack Balkin makes a compelling case that at least part of the verdicts in the district court decision finding Section 3 of the Defense of Marriage Act unconstitutional should be reversed. In particular, he says that the use of the 10th Amendment to base the claim of unconstitutionality is pernicious and could come back to haunt progressive governance:
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.
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?
Tauro’s logic, taken to its extreme, would set off a tea party bonanza and a far more widespread use of the 10th Amendment to challenge federal statutes, and could potentially cripple Medicare, Medicaid and dozens of other social programs that take family organization – and thus, state policy regarding family status – into account.
But while Balkin seems right on the 10th Amendment issues, he doesn’t make any similar sort of argument on equal protection. Balkin merely says that “Judge Tauro is way ahead of the national consensus” on that issue, that the federal judiciary above him is likely to overturn him, and that existing precedents do not call for such a decision. IANAL, but it seems to me that someone must dare to look seriously at this kind of argument – indeed, it has been the gateway to much civil rights legislation over the years, and an appeal to existing precedent seems to be merely a way to discourage any progress on this issue in the courts whatsoever. Moreover, it ignores Romer v. Evans and multiple other cases along similar lines which did, in fact, turn on the equal protection argument.
Balkin also claims that the verdict lays the groundwork for state challenges to marriage laws, hardly a respectful posture toward state’s rights. Again, this invalidates or at least makes less viable the 10th Amendment argument, but does little to the equal protection argument. Indeed, challenges to state marriage laws are happening RIGHT NOW, using these very arguments (see Perry v. Schwarzenegger). And there’s no reason they shouldn’t.
Erwin Chemerinsky had a different take, which focuses squarely on the equal protection argument.
“The key issue in this case, and in all litigation about marriage equality for gays and lesbians, is, Does the government have a rational basis for treating same-sex couples differently from heterosexual couples?” he said. “Here, the court says there is no rational basis for treating same-sex couples differently from heterosexual couples. Therefore, DOMA is unconstitutional, and conditioning federal funding on compliance with DOMA is unconstitutional.”
If the Obama Administration’s Justice Department declined to appeal the ruling, the point would be moot and the ruling would stand. Lawyers for the plaintiffs expect an appeal, however, which would go to the 1st Circuit Court, and then potentially the Supreme Court.
UPDATE: The California Courage Campaign has become the first major progressive organization to call on Obama not to appeal the rulings in Gill v. OPM and Massachussets v. HHS.