Jewish World Review July 19, 2010 / 8 Menachem-Av, 5770
Look who's defending states' rights
By Jeff Jacoby
In a pair of opinions earlier this month, Tauro struck down as unconstitutional Section 3 of the Defense of Marriage Act, which defines "marriage" for purposes of federal law to mean what it has traditionally meant: the union of a man and a woman as husband and wife. In one case, Gill v. Office of Personnel Managment, Tauro decided that the 104th Congress could not have had a "rational basis" for defining marriage as it did -- he chalked up its motives (and presumably those of President Clinton, who signed DOMA) to mere "animus" and "irrational prejudice." From there it was a short hop to ruling that DOMA violates the equal protection component of the Fifth Amendment's Due Process clause.
In short, Gill stands for the familiar liberal self-righteousness on gay marriage: If you don't agree with me, you must be a bigot.
But what shall we make of Tauro's opinion in the second case, Massachusetts v. Dept. of Health and Human Services, which invalidates DOMA on the grounds that it violates the Tenth Amendment? That amendment provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Under DOMA, federal programs do not regard same-sex couples as married -- not even in Massachusetts, where same-sex marriage is allowed. Tauro held that to be an impermissible intrusion on "a core area of state sovereignty -- the ability to define the marital status of its citizens."
Five times Tauro insists that each state has "exclusive" power to make rules about marriage. Even when it comes to the 1,138 references to marriage in the United States Code, he says, it is the individual state's definition that must prevail, and no other. Red-blooded states' right talk indeed!
But hold on. The Defense of Marriage Act itself uphold the states' Tenth Amendment right to define marriage as they see fit. Section 2 of DOMA -- which is titled "Powers Reserved to the States" -- explicitly affirms that states that do not recognize same-sex marriage need not defer to the "acts, records, and proceedings" of those that do. What could be more states'-rights-minded than that? Plainly, Congress was not only aware the Tenth Amendment when it passed DOMA, but committed to defending precisely that "core area of state sovereignty" of which Tauro is so solicitous.
Only when it came to the question of marriage within the context of federal law did Congress set male-plus-female as the national definition. But it could hardly have done otherwise -- after all, 45 states use the same definition.
Yet Tauro maintains that in choosing the definition endorsed by nearly every state, Congress and the president offended the Constitution and flouted centuries of precedent. "Prior to DOMA," he claims, "every effort to establish a national definition of marriage met failure. . . . The federal government consistently yielded to marital status determinations established by the states."
Not so. For the better part of 60 years, the federal government was uncompromising in its refusal to permit polygamy anywhere in the United States. The admission of Utah, Arizona, Oklahoma, and New Mexico as states was conditioned on their banning "polygamous or plural marriages . . . forever." That condition was spelled out in federal statutes -- statutes that to this day bar those states from altering that ban without the approval of the federal government.
You don't have to be against same-sex marriage to dispute Tauro's notion that whenever a federal statute uses the word "marriage," it is state law that determines its meaning. Northwestern University law professor Andrew Koppelman, a gay-marriage supporter, points out an "obvious counterexample" -- federal immigration law: "In most states, the government doesn't involve itself in the reasons a couple marries, even if there's no love involved and the marriage is primarily a business transaction or a matter of convenience. But when people marry for immigration purposes, the federal government has no trouble deeming the marriage 'fraudulent,' even though it remains valid under state law."
Still, let's say Tauro is right, and that under the Constitution, the rules of marriage are for each state to decide for itself. That can only mean that in the 45 states that don't permit gay marriage, Tauro wouldn't hesitate to dismiss a federal challenge aimed at legalizing same-sex wedlock. So if Tauro were the federal judge in California who is being asked to invalidate Proposition 8 -- the state amendment restricting marriage to opposite-sex couples -- he wouldn't hesitate to dismiss it. Surely, he would assert, the Tenth Amendment demands no less. Or does the judge's support for states' rights only extend to states where gay marriage is lawful?
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Jeff Jacoby is a Boston Globe columnist. Comment by clicking here.
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