Political InQueery: The Bill of Rights Strikes Back

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.

two men just marriedSo reads the text of the Tenth Amendment of the US Constitution. This week, it became a player in the push for same-sex marriage.

A Federal judge in Massachusetts found in two cases that the Defense of Marriage Act (DOMA) is unconstitutional in the way that it bars same-sex couples from receiving federal benefits that opposite-sex couples can receive, including things like Social Security. According to the New York Times:

In the case brought by Attorney General Martha Coakley, Judge Tauro found that the 1996 law, known as the Defense of Marriage Act, or DOMA, compels Massachusetts to discriminate against its own citizens in order to receive federal money for certain programs.

The other case, brought by Gay and Lesbian Advocates and Defenders, focused more narrowly on equal protection as applied to a handful of federal benefits. In that case, Judge Tauro agreed that the federal law violated the equal protection clause of the Constitution by denying benefits to one class of married couples—gay men and lesbians—but not others.

In using the Tenth Amendment, Judge Joseph L. Tauro argued that the Federal Government cannot force a state to discriminate against its own residents. This is interesting because the same amendment has been used by conservatives for their own purposes, including curtailing abortion rights. Experts disagree on how sturdy this basis will be; it's likely to be overturned on appeal. While the complexities would have hit amazing levels with Elena Kagan arguing against the ruling, it likely wouldn't have been the Solicitor General herself arguing for the constitutionality of DOMA. We'll have to settle for someone else from the Obama Administration, perhaps the same fellow who argued for DOMA in 2008, Scott Simpson. But appealing the ruling is the only way to get the matter up to the Supreme Court. 

For the moment, I'll relish that on the federal bench, somebody wrote that homophobia is "irrational." It's like a beam of sunlight in the cavern of neo-consevative goo.


by Everett Maroon
View profile »

Everett Maroon is a memoirist, essayist, and fiction writer originally from New Jersey and now living in Walla Walla, Washington. His blog is transplantportation.com and he tweets at @EverettMaroon.

Get Bitch Media's top 9 reads of the week delivered to your inbox every Saturday morning! Sign up for the Weekly Reader:

6 Comments Have Been Posted

DOMA's Purpose Was Ruled To Violate the 5th Amendment

My own reading of the ruling by the Federal District Court that <a href="http://www.sissypantybuns.com/wordpress/?p=276" rel="nofollow">DOMA is unconstitutional</a> went signifcantly farther than merely asserting the 10th amendment limitation on federal powers. It affirmatively asserted the Fifth Amendment equal protection clause. Just prior to it's conclusion denying the Defendent's (government's) motion for dismissal and granting <em>Summary Judgement</em> for the Plaintiffs, the Court ruled that the basis for the federal law itself was unconstitutional, that is, that the <b>purpose</b> of the federal law was unconstitutional.
The Court wrote:
<b>"...and, where, as here, "there is no reason to believe that the disadvantaged class is different in <em>relevant</em> from a similarly situated class, this court may conclude that it is only irrational prejudice that motivates the challenged classification. As irrational prejudice <em>never</em> 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."

Oops (again) - Meant to Type "relevant respects"

Sorry. i missed an error while proof reading and left the word "respects" out of the phrase " <b>in <em>relevant</em> respects</b> ". i guess i should have previewed my comment one more time than i did (4 times instead of 3?).

Yes, you're right of course,

Yes, you're right of course, he did bring up the 14th Amendment's Equal Protection Clause (http://en.wikipedia.org/wiki/Equal_Protection_Clause). I found his use of the 10th Amendment more interesting only in the context of how it's been used recently by the right wing. But certainly more of the Constitution was referenced in his ruling.

You Made A Lot Of Excellent Points In This Post

You make a lot of excellent points in this post yourself. The way the Tenth Amendment has been used by the right wing to try to limit federal civil rights and human rights legislation and at the same time try to limit States from protecting civil and human rights seems very much antithetical to the idea of individual liberty in general.

i too found it refreshing to read the The <a href="http://www.glad.org/uploads/docs/cases/2010-07-08-gill-district-court-de... rel="nofollow">United States Federal District Court ruling written by Judge Joseph L. Tauro (PDF file)</a> uploaded by glad.org because, as you wrote, it interprets the Tenth Amendment as limiting the ability of any governmental entity in the United States to take away people's rights rather than seeking to prevent government entities from protecting rights.

Belatedly i noticed that irin at <a href="http://www.jezebel.com/" rel="nofollow">Jezebel</a> had also written a very short post applauding the decision as well. Kudos for that as well as to you for your post here.

i would be surprised if this decision does not get appealed to the Federal Circuit Court of Appeals, but have not checked to see what judges sit on the bench for that Circuit and what their leanings are. Are you familiar with it? Do you think it might get kicked back down for re-argument? i suspect some people would love it to be a campaign issue and hang around a while.

I'm quite certain it will be

I'm quite certain it will be far-reaching, whichever way it goes. Either the residents of Massachusetts will have confirmed that they can't get Federal benefits as legally married couples, or everyone in the country will be living with no more DOMA.

Add new comment