Massachusetts Gay Marriage Ruling Raises Fascinating Constitutional Questions
July 11, 2010 1 Comment
Massachusetts strikes again — this time a federal judge rather than the state supreme court. And again it’s riveting. In a pair of lawsuits, the federal court struck down the federal Defense of Marriage Act (DOMA) as a violation of both the Equal Protection Clause and the Tenth Amendment.
According to DOMA, which was passed by the 104th Congress and signed by President Clinton, “No state (or other political subdivision within the United States) needs to treat a relationship between persons of the same sex as a marriage, even if the relationship is considered a marriage in another state. The Federal Government may not treat same-sex relationships as marriages for any purpose, even if concluded or recognized by one of the states.”
Judge Tauro says no. This is fascinating stuff.
I’ve written before that a proper appreciation for liberty compels support for gay marriage. But I argued that such support must be political, not judicial. In other words, it is not the province of the judiciary to decide the issue as a matter of constitutional law. It is a matter to be won, politically, state by state. I believe the matter is not properly resolved by the judiciary because I do not believe homosexuals are a protected class and thus entitled to “strict scrutiny” analysis under the Equal Protection Clause.
Now Judge Tauro has done two things I didn’t see coming. First, applying merely the rational relation test for Equal Protection analysis — rather than strict scrutiny — he held that DOMA fails even the massively-indulgent rational relation test. Second, he resurrected the moribund Tenth Amendment to hold that marriage is not sufficiently a federal concern, and that the federal government therefore had no business legislating about it in derogation of states’ rights to legislate as they choose. Wow.
Two things to understand: first, the “rational relation” test has been code for a long time to mean, of course we defer to the legislature, of course they were at least “rational,” therefore no constitutional violation; and second, the Tenth Amendment, since FDR, the New Deal, and expansive interpretation of the Commerce Clause, has been neutered. “States’ rights” is a fiction.
So Judge Tauro’s decision is unlikely to prevail on appeal. But part of me wishes it were otherwise.
It has long bothered me that “rational relation” analysis essentially means, unless we find that the entire legislature was stricken by botulism and enacted the law in question while vomiting and hallucinating, it is constitutional. I think Judge Tauro is wrong to hold that no “rational legislator” could properly conclude that there is a legally cognizable difference between heterosexual and homosexual marriages — but I am delighted that a federal judge would venture into the territory of invigorating “rational relation” analysis.
I am equally delighted that a federal judge would reinvigorate the Tenth Amendment. Also, unfortunately, not likely to prevail on appeal, since the federal government fairly clearly has an interest in the definition of marriage. But what a wonderful jurisprudence these appeals could generate, if federal appellate courts or the Supreme Court held that, no, the Tenth Amendment is no bar to DOMA, but yes, the Tenth Amendment does proscribe some federal conduct. Yes, the tenth part of our sacred Bill of Rights does mean something. The federal government cannot do anything and everything.
DOMA was a political expedient for the 104th Congress and for President Clinton. But here’s what DOMA did right: it is inappropriate for one state court to decide the issue of gay marriage, by force of the Full Faith and Credit Clause, for all states.
I support gay marriage, as I support the right to abortion, but I do not believe either of these issues should be dictated by the judiciary. These are quintessentially political issues, to be resolved in political venues and won, hopefully, on the merits.