July 9, 2010

Jack Balkin warns liberals not to cheer the new DOMA cases.

He supports same-sex marriage (and other liberal causes) but he's got a big problem with using the Tenth Amendment:
Judge Tauro ... wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families....

In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?...
The modern state depends heavily on the federal government's taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA's direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable-- and unconstitutional-- to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.
Does this mean conservatives should cheer?

44 comments:

Geoff Matthews said...

I'd make that trade. I'd rather that people didn't get married just so get 'stuff'.

Randy said...

Does this mean conservatives should cheer?

Only if those who actually believe in the 10th amendment. Most, however, believe in it only when it suits them.

Henry said...

How about libertarians? I'll cheer.

No I won't. Much as I like the idea of casting doubt on Federal power, doubt won't buy you a cup of coffee. Balkin has managed to make Judge Tauro look like an tool, but he needn't worry about the New Deal of the Great Society. That law is entrenched. Some other judge will come up with an excuse for it all.

I don't like the DOMA, but this looks more like a case of confirmation bias than legal judgment, which is sad.

Henry said...
This comment has been removed by the author.
Jay said...

I am cheering - thrilled to see the forgotten Tenth breathing still.

I laughed at Randy's comment - both sides prefer to cherry pick the Bill of Rights - that's why the two 2nd Amendment cases were so thrilling for me - it serves to show that ALL of the Bill of Rights gets equal treatment - and now the 10th is back? I am living in the American Constitutional Renaissance! Happy days law geeks!!

Franklin said...

"Does this mean conservatives should cheer?"

Absolutely. Long live the 10th Amendment!

Fred4Pres said...

I am not sure DOMA is unconstitutional, but re-reviewing 10th Amendment issues is interesting stuff. It would be nice if the 10th Amendment was actually interpreted to mean what is says...

Scott M said...

Viva la 10th Amendment. More please...

garage mahal said...

Conservatives will cheer if the DOJ chooses to appeal the decision. If they do, it will be a bloodbath for Dems.

Larry J said...

So, he's in favor of federal government interference when the issues suit him, such as increasing the power of the federal government. However, when the federal government interferes with the states on things he disagrees with, that's bad.

How about this: the 10th Amendment was never repealed. This ruling against the DOMA act on 10th Amendment grounds is a good thing. If that undermines federal government intrusion in so many other things, that's also a good thing. If you eliminated from the federal government those things that violate the Constitution, the government would likely be less than 25% of its current size and cost.

Scott M said...

garage,

You're once again confusing conservatives with a group of people you completely understand.

c3 said...

I wish liberals would get their story straight; are states "rights" good or bad?

garage mahal said...

ScottM
Why? What I'm describing is a self inflicted wound. By Dems, on Dems.

Scott M said...

Why? What I'm describing is a self inflicted wound. By Dems, on Dems.

That only reinforces my point.

garage mahal said...

Don't buy it.

Scott M said...

Conservatives will cheer if the DOJ chooses to appeal the decision.

Why would conservatives appeal the decision if it's based on solid 10th amendment grounds? Because you believe all conservatives believe in the DOMA? Again, refer to my original point.

Scott said...

I am floored. Garage posts a rational comment.

When Rush Limbaugh hired Elton John to perform at his wedding, I think he sent the message that it's okay for conservatives to hang with gays. (At least this is the message for those conservatives who think the two are mutually exclusive.)

Times have changed. So it doesn't seem to me that the repeal of DOMA is seen as big negative by conservatives from a social standpoint, except for the Maggie Gallagher types, who are out of their little minds. And it is a win for the 10th Amendment, which conservatives like.

It's good to remember that DOMA was supported by the most liberal members of Congress, including co-sponsorship by the sainted Sen. Paul Wellstone (who later expressed doubts that he should have done that -- but who never took the initiative to roll it back.)

When it gets down to it, although most gays are Democrats, they/we a very small minority of the larger party. The reality is that most Democrats could give a rat's ass about gay rights, or anyone's civil rights for that matter.

garage mahal said...

ScottM
If the DOJ appeals the decision, that puts the gay community already not happy with Obama, even more at odds with him and Democrats. The judge who sided with the gay group who filed was even a conservative. Perfect storm if you ask me.

Paul Zrimsek said...

The philosopher-king version of rational-basis analysis raises its ugly head again. I almost hope these decisions are upheld at the appellate level, just to see Scalia rip this guy a new asshole.

Scott said...

@Paul Z.: IANAL but I love reading Scalia's decisions too, especially when he's pissed. :)

Scott M said...

If the DOJ appeals the decision, that puts the gay community already not happy with Obama, even more at odds with him and Democrats. The judge who sided with the gay group who filed was even a conservative. Perfect storm if you ask me.

In that sense, then, yeah, I agree. Besides, the DOJ is too busy not pursuing blatant civil rights violations because the plaintiffs appear to be pigment-challenged.

Perfect storm indeed...at least in the brewing stages.

Dave said...

Why doesn't Balkin bother to think that perhaps Judge Taupin might have actually meant to cast doubt on the constitutionality of those programs as well?

Personally, I don't think government - at any level - should be involved in defining what marriage is, and the fact that they do is a leftover from the days when the church was the state, or at least a large part of it.

I sometimes wonder why there hasn't been a challenge to current marriage statues on Establishment Clause grounds, say by Muslims or originalist Mormons, or other polygamous religion.

Paul Zrimsek said...

Why doesn't Balkin bother to think that perhaps Judge Taupin might have actually meant to cast doubt on the constitutionality of those programs as well?

Elton John's going to have the devil's own time trying to bend a tune around the text of these decisions.

Cedarford said...

The guy's 79. Another argument for fixing the Constitution, with one of the big fixes ending lifetime tenure of Federal judges.

Also, by his argument, the 10th meant it was unconstitutional to force Utah (or Michigan if they get enough Islamoids in) to keep bigamy illegal.
And if Nevada wants to make bestiality cool, what's to stop it? The commerce clause blocking transporting underage sheep across state lines for immoral purposes??

c3 said...

When Rush Limbaugh hired Elton John to perform at his wedding, I think he sent the message that it's okay for conservatives to hang with gays

Or maybe he just like's his music.

(Frankly, that said more about Elton John than Rush Limbaugh. And I'm an Elton John fan and not a Rushbo fan.)

Quayle said...

"No matter how much they might like the result in this particular case, this is not a road that liberals want to travel."

He's right, because the road the liberals want to travel is to get whatever they want, in any way possible, without having to explain how their positions and activities comprise a coherent position.

I would ask our liberal and gay friends on this blog: if DOMA isn't the way for American citizens to define marriage as being one man and one woman, and if Prop-8 isn't either, please tell us - enlighten us- on what would be the correct procedure.

Scott said...

@Paul Z -- LOL :)

Dead Julius said...

Maybe conservatives should start advertising their political candidates as strong supporters of the Tenth Amendment? It could be the principal selling point along with fiscal conservatism.

Federalism on social issues combined with austerity at a national level would be a very strong platform.

But the conservatives won't do this-- their contributors and supporters wouldn't stand for it, and what the contributors and supporters want is more important than what is good for America.

David said...

I know lots of conservatives who claim to love the 10th Amendment. They are nuts.

In substance, the 10th says, "This constitution says whatever the Supreme Court says that it says."

Dead Julius said...

In substance, the 10th says, "This constitution says whatever the Supreme Court says that it says."

Well, it's up to interpretation then, is it? If so, the conservatives ought to push politically to define it as encouraging state's rights and limiting the power of the federal government in all possible circumstances.

Conservatives could even push for another constitutional amendment to clarify it. Even if the effort were to fail, it would be an excellent political rallying point.

downtownlad said...

Why do conservatives ignore the 9th amendment?

I believe they refer to it as an "inkblot"

edutcher said...

Ann Althouse said...

Does this mean conservatives should cheer?

I sure did.

downtownlad said...

Why do conservatives ignore the 9th amendment?

A lot of us don't. The 9th and 10th Amendments put a serious damper on the feds' ability to gum up our lives. Which, of course, is why the appellate courts do their best to ignore them.

G Joubert said...

Personally, I always found the argument that DOMA is violative of the full faith and credit clause to be the most persuasive.

Kirk Parker said...

Scott,

"When Rush Limbaugh hired Elton John to perform at his wedding, I think he sent the message..."

I think sending messages was the furthest thing from his mind.

Leland said...

9th Amendment is another good one against stuff like federally enforced purchase of healthcare.

Mark said...

Not as a conservative, but as a libertarian, yes, I'm happier than an alligator in a pool full of poodles.

Mark said...

I guess in keeping with another post, I should say I'm happier than a python in a cage full of hamsters.

John Stodder said...

I cheer on many levels. DOMA was an ugly piece of legislation. States that want to let gays marry should certainly be allowed to do so without a hint of opposition from Big Fed. Reviving interest in the 10th amendment is grand. The fact that a wary big-government fan is freaked out by the good news/bad news element of this ruling is fantastic.

Because conservatives oppose gay marriage, I don't consider myself a conservative. (That's not the only reason I don't.) But I respect those who smell a conservative in me as having a point.

John Stodder said...

So it doesn't seem to me that the repeal of DOMA is seen as big negative by conservatives from a social standpoint, except for the Maggie Gallagher types, who are out of their little minds.

What is wrong with that woman, and why do conservatives see her as an intellectual? Seriously, I rarely read anyone, left or right, whose reasoning is so circular and whose impetus seems purely that she thinks what gays do is icky. Just as WFB drummed certain toolheads out of the conservative movement a generation ago, so should today's heirs to him drum people like that out of their movement. It would be good for limited-government types like me if we could take a clean shot at actually limiting government without the social conservatives always jumping in and saying, "except for sex!"

Ben (The Tiger in Exile) said...

Right-wingers _should_ cheer.

10th Amendment revival is all to the good, by our lights.

And DOMA is bad policy -- it should be left to the states to decide.

That'll probably lead to gay marriage, and that's a good thing.

Best outcome: civil marriage for gays, and let churches do what they will -- some hippy-dippy ones will marry them, some fire-and-brimstone ones will forbid them the premises, and everyone can live how they like.

(Yes, some gay activists will try to have churches forced to marry them or rent them their halls. I'll stand with the churches then.)

Eric said...

I'd cheer if I thought it was the beginning of the reinvigoration of the tenth amendment. I doubt that's the case, though. Even if this guy gets overruled on appeal I don't see the Supreme court reversing Raich any time soon.

Revenant said...

please tell us - enlighten us- on what would be the correct procedure.

IF Congress has no power to decide what is or isn't marriage, and IF the Constitution forbids states from discriminating against gay married couples in marriage law, then the correct procedure would be to amend the United States Constitution.

For example, it was unconstitutional for Congress to ban alcohol, and unconstitutional for "dry" states to forbid their citizens from patronizing bars in neighboring "wet" states. So people who wanted to make it impossible for anyone in America to legally drink amended the Constitution, giving Congress the power to solve the problem.

Dust Bunny Queen said...

Libertarians... arise

I seriously think that (moderate) libertariansm is becoming more to the forefront of political thought.

Libertarian sentiment is the foundation of our Constitution and Bill of Rights. Finally, with the advent of Obama's in your fucking face Socialism grab.....people are waking up to the fresh air of libertarianism.

We ARE free to choose.

Andi said...

This whole issue is twisted.

As near as I can tell, the judgment has two effects. First, it implies that 'full faith and credit' now applies to gay marriages. That's simply BS. DOMA may have given support to 'full faith and credit' NOT applying to gay marriage, but it was unnecessary. States were ALREADY free to reject other State laws that conflict with their own laws or policies.

Second, the judgment seeks to compel the U.S. Government to recognize and enforce State Laws. BS again. State laws cannot compel the US Government to act.

Just because one Judge mentions the 10th amendment, we're supposed to get all orgasmic and let Massachusetts dictate South Dakota and Federal policy?