Recently, Massachusetts Federal District Judge Joseph Tauro ruled that portions of the federal Defense of Marriage Act (DOMA) were unconstitutional because it violated both the Fifth and Tenth Amendments. Though the court only addressed the issue of the federal statute’s constitutionality, its reasoning, if adopted by other courts deciding challenges to state marriage laws, would have the effect of making same-sex marriage a federal constitutional right.
At the outset, it should be pointed out that the court did not address Section 2 of DOMA, the provision which preserved the ability of states to refuse to recognize gay marriages performed in other states. Under the Constitution’s Full Faith and Credit Clause in Article 4, states must recognize the laws of another state, subject to Congressional regulation.
Congress, using this power to regulate under the Full Faith and Credit Clause, determined that state marriage laws were exempt from the constitutional requirement of interstate comity. While the court did not overrule this determination, this small victory will be moot if, in the future, a court determines that there is a federal constitutional right to gay marriage, for such a right will be binding on both the federal and state governments, irregardless of Congress’ power under the Full Faith and Credit Clause.
What Judge Tauro did do was strike down Section 3 of DOMA, which defined, for purposes of federal law, that marriage is between a man and a woman. This simple statutory provision defines the terms “marriage” and “spouse” throughout the entire federal code, which affects countless programs such as Medicare, Medicaid, Social Security, ObamaCare, and, in this case, a VA regulation that requires veterans’ cemeteries “be operated solely for the interment of veterans, their spouses, surviving spouses, [and certain of their] children.”
Federal regulations governing these programs obviously affect state laws. In this case, for instance, because state-operated cemeteries in Massachusetts, a state where gay marriage is legal, received federal money from the VA, they were therefore required to abide by VA regulations, including the DOMA definition of marriage. This, Judge Tauro ruled, violated the Tenth Amendment because it intruded on a state’s traditional ability to define and regulate marriage.
While presumably a triumph for state’s rights, there are several problems with Judge Tauro’s rationale. The first is that the Tenth Amendment itself is simply a restatement of the federalist principle that the federal government is one of limited, enumerated powers; by itself the amendment does not grant or preserve the ability of states to regulate.
By erroneously reading the Tenth Amendment as a source of state power, Judge Tauro engaged in the dangerous and subjective determination of whether a state action is an important enough “traditional government function” to warrant protection under the amendment. Instead, the proper question is whether the Constitution itself authorizes the federal action and, if not, the federal government is powerless to regulate in that area. Focusing on the Tenth Amendment as some fount of state sovereignty places the onus on the state to prove that it has the power to pass the law in question. The reality, however, is that the Constitution reverses that burden and places it on the federal government.
This leads to the second problem with the court’s rationale—either the federal government has the power to enact the VA program in question, and thus the power to define terms and make other regulations to carry out that power, or it doesn’t. If the federal definition of marriage used in the VA cemetery program, ObamaCare, social security, etc. is unconstitutional because it exceeds Congress’ specifically enumerated constitutional powers, than those programs themselves are also unconstitutional. The court cannot hold one without the other.
In addition to holding that the federal definition of marriage violated the Tenth Amendment, Judge Tauro also held that it ran afoul the Equal Protection Clause of the Fifth Amendment. At its core, the Equal Protection Clause requires the government to treat all persons similarly situated the same, though the government can, in most cases, overcome this by claiming a rational basis for the distinction.
The first problem with the court’s rationale is that there is no equal protection guarantee in the Fifth Amendment. Only the Fourteenth Amendment, which applies to states and not the federal government, contains an Equal Protection Clause. As odd as it may be, there is nothing in the Constitution which requires the federal government to provide its citizens with the equal protection of the law.
The second problem with the court’s ruling is that, despite ample evidence to the contrary, Judge Tauro held that there is absolutely no rational basis for limiting marriage to only heterosexual couples. The federal government, with Solicitor General and Supreme Court nominee Elena Kagan’s direct involvement, refused to strongly defend DOMA, informing the court that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.”
Given the refusal of the government to defend its own statute, it is of little surprise that the court opted not to do so either. But, unfortunately, if neither the federal government nor the courts believe there is any constitutionally-recognizable rational basis for limiting the federal definition of marriage to one man and one woman, it is only a matter of time until other courts, addressing state marriage laws, will find them to be constitutionally wanting as well.
Ultimately, only a federal constitutional marriage amendment can prevent this outcome. It would be irresponsible for states to refuse to do what they can to protect marriage via their own state constitutions out of fear of what a federal court may or may not rule in the future. But, at the same time, it would be irresponsible for us to neglect efforts to pass a federal marriage amendment until after gay marriage is imposed on us by the federal courts.
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