Irony: 10th Amendment Used to Strike DOMA

If you ask your run-of-the-mill Teabagger what is contained within the Bill of Rights you will get them to recite at least one and a half of them: the second half of the Second Amendment (…the right to keep and bear arms shall not be infringed) and the Tenth Amendment (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).

Indeed, the Teabaggers are a wholly owned subsidiary of “The Tenthers,” a political stratum in America who holds that many actions of the federal government are unconstitutional because they are not specifically allocated to the federal government by the constitution.

You know, things like Medicare and Social Security. Those things, if you listen to the Tenthers, are unconstitutional.

So it might come as a surprise to the Tenthers that someone in an unanticipated corner is listening to them, specifically US District Court Judge Joseph L. Tauro.

Because yesterday Judge Tauro, in deciding the case of Nancy Gill and Michelle Letourneau et al. v. Office of Personnel Management et al. ruled that Section 3 of the 1996 Defense of Marriage Act (DOMA) was unconstitutional as it denied people legally married in the State of Massachusetts of equal protection of the law. A PDF of the decision may be read here.

Massachusetts, which recognizes the union of same-sex couples as a marriage in the same way that heterosexual couples have enjoyed, and allows same-sex couples the same benefits of marriage as heterosexual couples, affords same-sex couples the same rights and benefits as heterosexual couples. The federal law, however, forbids the federal government to make federal benefits available to the same couples.

This, Judge Tauro ruled, was in violation of the equal protection principles embodied in the Due Process clause of the 5th Amendment.

Judge Tauro, in analyzing DOMA’s intent, found that its underlying principle was arbitrary and irrational:

“As such, a law must fail rational basis review where the “purported justifications ...[make] no sense in light of how the [government] treated other groups similarly situated in relevant respects.”

But Tauro went further, ruling that, as any Tenther would agree, it is the states that have purview over marriage. Marriage is not something that is mentioned even once in the US Constitution.

“There can be no dispute that the subject of domestic relations is the exclusive province of the states. And the powers to establish eligibility requirements for marriage, as well as to issue determinations of martial status, lie at the very core of such domestic relations law. The government therefore concedes, as it must, that Congress does not have the authority to place restrictions on the states’ power to issue marriage licenses.”

Indeed, Tauro points out that state marriage laws vary from one state to another, and the federal government has never sought to standardize any aspect of marriage until it enacted DOMA.

Indeed, Tauro points out that sixteen states maintained miscegenation laws up until 1967 when the US Supreme Court ruled that these laws denied mixed-race couples “constitutional guarantees of equal rights and due process.”

In short, DOMA introduces complexity in a situation that should be straightforward. A same-sex couple should have all rights and benefits afforded to heterosexual couples notwithstanding the fact that some rights or some benefits originate from federal programs. Where heterosexual couples have no problem, same-sex couples who are legally married in the eyes of state law do.

Clearly this is because the federal government overstepped its purview, and sought for the first time in history to define marriage only in terms of the awarding of benefits under federal programs.

This is using federal law as a tool to discriminate against a sub-population of Americans, something that should be anathema to all freedom-loving citizens.

Finally, Judge Tauro rules DOMA unconstitutional:

“To further divide the class of married individuals into those with spouses of the same sex and those with spouses of the opposite sex is to create a distinction without meaning. And where, as here, “there is no reason to believe that the disadvantaged class is different, in relevant respects” from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice plainly never constitutes a legitimate government interest, this court must hold that Section 3 of DOMA as applied to Plaintiffs violates the equal protection principles embodied in the Fifth Amendment to the United States Constitution.”

Now, one would ask, will this be appealed? President Obama has stated that he wants DOMA to be repealed, but I doubt that will happen now. It will be up to the Justice Department to decide whether they will pursue an appeal, but really they have no choice.

A federal judge has overturned a federal law. An appeal is guaranteed, almost as much as it is guaranteed that the case will find its way to the Supreme Court. And from there we’ll just have to see how or whether the five conservative justices are willing to allow big government to intrude on what has historically been a province of the states.

Oh how the worm has turned.