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Tentherism and the gay marriage ruling

Tentherism and the gay marriage ruling
By Eric Black

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.

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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.