Pardon the obsession with Tenth Amendment matters. I had not planned to return to the subject quite so soon again, but one of Thursday’s big federal court rulings on same-sex marriage relied heavily on Tenth Amendment logic. and illustrates something I said in my original Taking Tentherism Seriously piece: Small government conservatives like the idea of a strictly construed 10th Amendment as the cure for federal gigantism. But if they take the logic seriously, it may take them to some places they didn’t expect to go. I gave a few examples, but I admit I didn’t think of the application of Tentherism to the gay marriage issue.
Specifically: Massachusetts has legalized same-sex marriage (yes, by a decree of the state Supreme Court, not by legislative action or referendum).
Since the passage of the 1996 Defense of Marriage Act (DOMA, passed by a Republican-controlled Congress and signed by Pres. Bill Clinton) federal law has said that federal benefits (Social Security, for one big example) that take marital status into account (the surviving spouse can, for example, get the Social Security benefits of a spouse who died) will recognize only married couples consisting of one man and one woman.
In yesterday’s rather startling decision, Federal Judge Joseph Tauro of Massachusetts ruled that DOMA violates the Tenth Amendment because defining marriage is a state power and nothing in the Constitution gives Congress the authority to legislate on what constitutes a valid marriage. So Tauro pretty much struck down DOMA on 10th Amendment grounds.
Tauro actually issued two rulings on two different suits, both consistuting big wins for the pro-gay-marriage plaintiffs. In the other ruling, Tauro relied on “equal protection” logic, via the Fifth Amendment “due process” clause. He said there was no rational basis for treating same-sex couples differently from opposite-sex couples for purposes of granting federal benefits or protections.
Judge Tauro, by the way, came up through Republican circles and was appointed to the bench by Pres. Richard Nixon in 1972, but that was long before same-sex marriage was an issue.
Tauro’s ruling (the one that relies on Tentherism) is here. It’s altogether possible, bordering on likely, that Tauro’s ruling will be overruled or modified on appeal.
The federal law applies to the federal government, not to the states. It’s quite a stretch for a Massachusetts federal judge to say that the states can determine how federal pension benefits are calculated.
Of course its not surprising that a judge will reach a decision based on what he desires, not on what the law permits.
That’s precisely the point of the ruling, of course — that federal law (DOMA) has no ability to determine how states can exercise the powers they possess (determining a definition of marriage).
Also, technically the 10th amendment decision only invalidates Section 3 and not the entire DOMA statute. However, it’s possible that so much of the remainder of the statute depends on the Section 3 definition of marriage that, absent that definition, the statute becomes pointless. In that sense, the decision that Section 3 is unconstitutional may well invalidate the entire statute.
I’d have to think that Ray is right and that the Federal gov’t can determine how it will give out benefits. Otherwise states could try and game the system to allow their citizens to pay fewer Federal taxes or be eligible for more benefits, no?
Beyond the benefit discussion this seems to close the door on any Federal legislative attempt to answer the question of who can marry each other. And that seems fine to me.
The facts and precendents are on his side, and I think the judge’s ruling was thorough, well-reasoned and correct and should be upheld.
I’m not clear, though, why EB thinks this is a problem for tenth amendment persons. It is just the kind of thing where they would see federal interference (fiscally) in an area by tradition and precedent reserved to the states.
And it illustrates very well how the STATES are a watchdog against federal intrusion.
As for gay marriage, if outlier Connecticut courts are displeasing to their citizens, I believe the citizens have a right to go for an amendment to the state constitution, which the courts could not overrule.
If their legislature chooses not to put it before them, we’ll see how the fall elections go there.
Ray and Peder:
It is the prerogative of the states to define marriage.
The federal government can set rules determining the distribution of funds based on marital status, but it must honor the states’ definition of that status.
John,
“I’m not clear, though, why EB thinks this is a problem for tenth amendment persons.”
I suspect EB thinks it may be a problem because much of what he calls ‘Tentherism’ tends to come from the conservative/libertarian right, which sees itself as opposed to The Left (or, perhaps more accurately, which sees The Left as opposed to their beliefs).
See http://www.tenthamendmentcenter.com/tag/the-left/ for an example.
EB’s point in his original post about Tentherism is that there are many things that conservative politicians aligning themselves with Tentherism say they’re for (Social Security, FEMA, medical benefits for disabled veterans, and other things) which don’t necessarily pass a Tenth Amendment muster.
And as this issue makes plain, there are ‘lefty’ issues that also would benefit from a strong Tenth Amendment argument (gay marriage, legalization of marijuana, repeal of NCLB) that right-wing Tenthers might not actually want done.
Correct me if I’m wrong, but wasn’t the gun law case recently decided by the Supreme Court a defeat for Tenthers? Where is the outrage from Emmer, Bachmann, and Company that gun laws cannot be set locally, only nationally? They can’t have it both ways.
It seems the problem with wagging the Constitution in someone’s face is that you are not able to read it while doing so.
Paul, that makes sense.
Danie,
The second amendment decision was just the opposite of a defeat for tenth amendment supporters: it is a clear example of a power specifically assigned to the federal government powers to enforce its amended constitution.
The decision simply states that (mindful of the decisive role that an armed citizenry had in the defeat of the british forces in the revolution, and wanting to be sure that the citizens would be empowered in like manner if an overbearing new american federal government began to act like the british had), the founders made it clear that the new government would face the same challenge as the british should it overreach.
This broad right, ensuring that citizens would not have to fight an armed federal force with pitchforks like their neighbors in Europe, was and is a deliberate attempt to defend against a new federal government seen as a risk to freedom.
The second amendment, farcical objections of the last 60 years notwithstanding, has always been so understood.
It is still true today that it is a good thing that arrogant federal politicians know that if they go too far the citizens, exercising their right to revolt again, have the means to do so.
The ONLY ones who should fear an armed citizenry are those who would place all effective power in the government.
And they do fear it, as evidenced by the recent efforts of power grabbers in Washington to water down this ultimate threat to their power.
They would have you believe that the right to effectively defend yourself and your neighbors against threats from intruders, but more importantly against threats from those in power, is a “danger” to you!
It’s NOT a danger to you, any more than it was a danger to the original revolutionaries who fought the british government. Don’t be fooled. Think before you surrender your ultimate right to object to an overreaching powerful government.
John–
The Supremes’ ruling on Chicago gun control law was rather restricted — it made no blanket judgment about the right of municipalities to regulate the use and ownership of firearms — it simply said that a specific law went beyond what was constitutionally permissible. That’s why Chicago is preparing new laws that will be consistent with this ruling.
And your reading of the 2nd amendment seems inconsistent with the last two centuries of legal decisions, which have consistently held that the opening phrase “** A well regulated Militia**, being necessary to the security of a free State, the right of **the people** to keep and bear Arms, shall not be infringed. ”
restricts this amendment to collective applications such as the National Guard.
“We the people” is a collective noun, not a reference to individual citizens.
Sorry, Paul, I have to insist on citations here, as your statement conflicts with facts known to me.
A limited statement from the court in the forties, I believe, represents the ONLY decision bearing on the second amendment, which has been used and abused by the anti-gunners until now.