Federal judge rules DOMA unconstitutional

posted at 6:54 pm on July 8, 2010 by Ed Morrissey

Actually, according to the Associated Press, Judge Joseph Tauro based his ruling on two separate but linked cases on the Tenth and Fourteenth Amendments.  In overturning the Defense of Marriage Act (DOMA), Tauro ruled that the law interfered with state rights — a specific 10th Amendment issue — to define marriage:

A U.S. judge in Boston has ruled that a federal gay marriage ban is unconstitutional because it interferes with the right of a state to define marriage.

U.S. District Judge Joseph Tauro on Thursday ruled in favor of gay couples’ rights in two separate challenges to the 1996 Defense of Marriage Act, known as DOMA.

The state had argued the law denied benefits such as Medicaid to gay married couples in Massachusetts, where same-sex unions have been legal since 2004.

Tauro agreed, and said the act forces Massachusetts to discriminate against its own citizens.

“The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment. For that reason, the statute is invalid,” Tauro wrote in a ruling in a lawsuit filed by Attorney General Martha Coakley.

The ruling in the paired case rests on the equal-protection clause.  Tauro apparently wants to cover all his bases for the inevitable appeal.

The 10th Amendment application seems a little odd to me, especially in the case of Medicaid coverage.  That program uses federal funds in part to cover medical bills.  The federal government would therefore seem to have jurisdiction on how its own funds get spent, although the state should have the same latitude with its own funds.  After all, DOMA doesn’t tell states that it can’t recognize same-sex marriages, but just exempts marriage recognition from the full faith and credit clause of the Constitution so that other states don’t have to follow suit.  It also retains federal jurisdiction on marriage definition for the purpose of spending federal money on partner benefits, which also has nothing to do with the 10th Amendment.

If the Supreme Court endorses this stand, though, it sets up an interesting question for conservatives who express support for better enforcement of the 10th Amendment.  Can they get behind this interpretation?  And will this sudden interest in applying the 10th Amendment by the judiciary start spreading to other issues, especially in rethinking a century’s worth of decisions on the commerce clause?


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Meh… maybe it’s just the libertarian in me, but I don’t think the government should be involved in marriages or ‘unions’, period. Consenting adults and all that.

Live how you want to on earth. You’re the one who’s going to have to explain what you did an why to your creator anyway. Good luck with that.

classicaliberal on July 8, 2010 at 7:11 PM

This certainly would be my preference as well: No state-sanctioned marriage for anyone, regardless of the parties’ genders.

NoLeftTurn on July 8, 2010 at 11:54 PM

So if a husband verbally abuses his wife (no physical abuse) and he clearly is damaging his marriage with his wife, he should be prosecuted for a crime?

MeatHeadinCA on July 8, 2010 at 8:40 PM

Your analogy is a poor one.

No one is saying that a person privately living with whomever they want and personally calling it whatever they want should go to jail as a criminal. Sodomy laws is a different discussion than the marriage discussion we are having.

We are talking about the state/formal society officially sanctioning and condoning behavior as being beneficial to society and children.

Jenfidel wasn’t saying the law should ban a private behavior, she/he was saying the laws should prevent the state from formally placing a particular arrangement on the same level as historical marriage from the beginning of time. Heterosexual marriage has been recognized as beneficial to society and children.

The law already recognizes that serious verbal abuse should not be sanctioned as something good in marriage or good for children. Divorce laws allow for divorce in these situations and of course children can be removed from a home because of any serious abuse, if another parent wants to protect the child.

A gay person living with someone of the same sex who is seriously verbally abusing them has the choice of staying or leaving, just like a heterosexual spouse does. And if after leaving that person is harassed or threatened, they can equally seek legal restraints from the law.

Even the Church, that has strict views on divorce, allows for permanent separation for serious continual verbal abuse or for physical abuse. Annulments and remarriage depend on several other related factors.

Any form of serious abuse is intrinsically bad for children and society and homosexual marriage is intrinsically bad for raising children and for society. And currently the law recognizes both of these things.

Elisa on July 9, 2010 at 12:08 AM

when marriage means anything anyone wants it to, then its meaningless…

and this is of course the agenda of the radical left…eliminate the family…Stalin would be proud comrade!!!

right4life on July 8, 2010 at 8:52 PM

Why do you need the state to define it for you? Hasn’t God already done that? I would think His definition carries more weight than what the state of Massachusetts has to say about it.

NoLeftTurn on July 9, 2010 at 12:09 AM

Perverts doing whatever they can to get others to recognize them as “normal” when we all know they are not . . . hence the term “pervert”. As can be seen by the number of states that have banned this oxymoronic “same-sex” marriage it goes to show you how desperate they are.

Why stop here, why not have marriages between more than two people?
Why not a threesome, or a foursome?
Why must the parties all be human?
I know several folks who really love their pets?
And why limit the freedom of an individual to be in only one marriage at a time? Why can’t Jane be married to Dick at the same time she’s married to Frank? I mean, Dick lives in California and Frank in Rhode Island and Jane does travel a lot for work. She cooks, cleans, and does other wifely duties with Dick for three weeks then with Frank for three weeks etc. etc. Separate marriages with separate dynamics with no mixing of the two.

Bubba Redneck on July 9, 2010 at 12:59 AM

And will this sudden interest in applying the 10th Amendment by the judiciary start spreading to other issues, especially in rethinking a century’s worth of decisions on the commerce clause?

A sudden interest in applying the 10th Amendment, just in time to use it to justify ruling a law unconstitutional that restricts gay marriage proponents from getting their way?

Nope, doesn’t sound a bit suspicious to me!!!!!!!!!!!!!!!!!

There Goes The Neighborhood on July 9, 2010 at 1:08 AM

Pure sophistry Ed. Let’s pretend there is something “conservative” about a ruling that is culturally revolutionary.

The late great Richard John Neuhaus once wondered aloud — would the courts so overstep their bounds that the American experiment in popular government was over? That day is moving closer in closer.

vilebody on July 9, 2010 at 1:10 AM

Let’s just stick with limited government, pro-growth and strong national defense ideas. Leave the homos alone.

toliver on July 8, 2010 at 7:51 PM

Better idea: leave marriage alone. Of all the things the government has no business trying to fix ….

There Goes The Neighborhood on July 9, 2010 at 1:21 AM

I personally don’t condone polygamy PEDOPHILIA, but it shouldn’t be illegal.

MeatHeadinCA on July 8, 2010 at 7:35 PM

where does it stop?

right4life on July 8, 2010 at 8:33 PM

you can up with something better than that right?

youve introduced a minor child, right4life. minors dont have the right of cosent.

see the difference there?

children dont have consent, right4life. adults – they do. thats why they call us adults.

your_worst_enemy on July 9, 2010 at 2:59 AM

If the Supreme Court endorses this stand, though, it sets up an interesting question for conservatives who express support for better enforcement of the 10th Amendment. Can they get behind this interpretation?

Interesting question. I would say no.

My non-lawyer understanding of the full-faith-and-credit clause is that contracts made in one state are still binding in another state. So if two people get married in one state, their marriage contract is still binding in another state, whether or not that state recognizes gay marriage or not.

However, that would obviously (except possibly to certain activist judges) only apply to the part of the contract that is between the two individuals. Any benefits that the state gives to married couples pertain to the part of the agreement between the state and the couple. That agreement is therefore not binding for any other state, since other states are not party to the agreement.

The only thing the full faith and credit clause does is enforce contracts between two parties across state lines – it does not forcibly include third parties into the contract.

And will this sudden interest in applying the 10th Amendment by the judiciary start spreading to other issues, especially in rethinking a century’s worth of decisions on the commerce clause?

HAHAHAHAHAHAHA!

Sorry, couldn’t help myself. Oh, would that it were so. I guess we can dream.

RINO in Name Only on July 9, 2010 at 4:55 AM

There’s a decades old opinion by Judge Reinquist of SCOTUS which basically stated that when the federal government pays the piper it sets the rules. If the Mass Court did not distinguish that case, then it is on flimsy ground and should be reversed on appeal. Again even the Euro Courts have recognized last week, there is no fundamental right to gay marriage. Marriage is to further socialization and stabilization of child parent relationships. Gay marriage (oxymoron) furthers neither of these fundamental policies.

eaglewingz08 on July 9, 2010 at 7:47 AM

I’m waiting for Holder to sue Massachusetts for preemption in 3…2…1…

John Deaux on July 9, 2010 at 8:16 AM

Why do you need the state to define it for you? Hasn’t God already done that? I would think His definition carries more weight than what the state of Massachusetts has to say about it.

NoLeftTurn on July 9, 2010 at 12:09 AM

why do you need the state to define pedophilia, murder, rape, or anything else?

stupid question.

right4life on July 9, 2010 at 9:19 AM

you can up with something better than that right?

youve introduced a minor child, right4life. minors dont have the right of cosent.

see the difference there?

children dont have consent, right4life. adults – they do. thats why they call us adults.

your_worst_enemy on July 9, 2010 at 2:59 AM

and what age is considered an adult? it used to be 21, now its 18…the age of consent in Britain is 14, I believe…

and of course, then why can’t 4 or 5 people get married? they’re adults!!!

right4life on July 9, 2010 at 9:20 AM

This certainly would be my preference as well: No state-sanctioned marriage for anyone, regardless of the parties’ genders.

NoLeftTurn on July 8, 2010 at 11:54 PM

when you make marriage mean anything anyone wants, then its meanignless…

you realize that marriage (REAL marriage) is the bedrock of society…we have seen the results when marriages break down…the effects upon children and society…

but none of that seems to bother people like you…oh no its all about the gays and what they want. you don’t care about what happens to children, society at large, and especially about the freedom of religion and speech that would end should the gays get their way…

right4life on July 9, 2010 at 9:24 AM

This certainly would be my preference as well: No state-sanctioned marriage for anyone, regardless of the parties’ genders.

NoLeftTurn on July 8, 2010 at 11:54 PM

Agreed, up to one point: there needs to be a mechanic to assign legal responsibility for a child to a father, and various governments should be allowed to grant privileges to those who have children.

Count to 10 on July 9, 2010 at 10:10 AM

but none of that seems to bother people like you…oh no its all about the gays and what they want. you don’t care about what happens to children, society at large, and especially about the freedom of religion and speech that would end should the gays get their way…

right4life on July 9, 2010 at 9:24 AM

So, to you, religions are not good enough without the endorsement of government?

Count to 10 on July 9, 2010 at 10:11 AM

basically stated that when the federal government pays the piper it sets the rules. If the Mass Court did not distinguish that case, then it is on flimsy ground and should be reversed on appeal. Again even the Euro Courts have recognized last week, there is no fundamental right to gay marriage. Marriage is to further socialization and stabilization of child parent relationships. Gay marriage (oxymoron) furthers neither of these fundamental policies.

eaglewingz08 on July 9, 2010 at 7:47 AM

The 10th Amendment reasoning seems likely to be overturned, which is unfortunate since the courts have allowed DC to step on the states and individuals mostly by ignoring the 9th and 10th Amendments.

Europe has different fundamental rights than the U.S. Don’t know if they have a different Creator, but the treaties that bind them are not the same as the US Constitution and SCOTUS precedent.

dedalus on July 9, 2010 at 10:57 AM

So, to you, religions are not good enough without the endorsement of government?

Count to 10 on July 9, 2010 at 10:11 AM

nice lie and non-sequitor…

right4life on July 9, 2010 at 11:03 AM

I haven’t read all the comments, but I gotta say that I am in favor of the ruling. Maybe we have to “give” on this one to help set the precedent of ressurecting the 10th amendment, and re-affirming the rights of states to differentiate themselves from one another.

If you don’t like the rules in the state you’re in, there are 49 (at least) others to choose from. Vote with your feet. I damn sure will, if it comes to it.

connertown on July 9, 2010 at 11:57 AM

Back when Andrew Sullivan was still sane, I always hoped he would sponsor a grand attempt to list all the rights and privileges that marriage brings at the federal and state levels, to help figure out what can easily be handled by contract versus what gay marriage or gay marriage all-but-in-name would entail. I still think it is a good idea to have a comprehensive plan, not just anecdotes about hospital visitation and so forth.

I support gay marriage, legalized at the state level by the people or their representatives, for one very selfish reason: It’s better to make the tent a little bigger and stay dry as opposed to being in the tent while lots of people are pissing in.

Cut off from marriage, monogamous gays in stable relationships who would otherwise get along fine within the two-unrelated-adult marriage system instead find themselves in an odd alliance with non-monogamous gays and much more radical folks who want to marry multiple related underage goats. The poly-kid-ists are a very small group, but have their volume (audio and of metaphorical pee) substantially increased because the would-be hay married couples are outside the tent with them.

raybury on July 9, 2010 at 12:13 PM

However well intentioned DOMA was, marriage is a state issue, not a federal issue. There is no Constitutional basis whatsoever for federal involvement in the marriage issue. The Tenth Amendment is the correct application here.

As far as benefits go, I think the equal protection clause may apply, although I am a bit dubious. Still, I think the two are separate issues that should be addressed separately. I’m wondering if the two issues can be broken out separately in an appeal.

tballard on July 9, 2010 at 4:37 PM

you can up with something better than that right?

youve introduced a minor child, right4life. minors dont have the right of cosent.

Semantics. The only reason minors don’t have the right of consent is because the law says they don’t….just like the law says two guys can’t consent to getting married.

xblade on July 9, 2010 at 5:25 PM

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