Beating Boies & Olson and likely Judge Walker (N.D. Cal.) to the punch, yesterday, Judge Tauro (D. Mass), a Nixon appointee, in a set of two cases, invalidated the critical § 3 of the Defense of Marriage Act (DoMA) as violative of the federal Equal Protection Clause, and, wait for it — the Tenth Amendment.
Significantly, the decisions come on plaintiffs’ motions for summary judgment, meaning plaintiffs win on the law, and on the undisputed facts, no trial necessary.
These aren’t garden-variety opinions. Judge Tauro’s opinions don’t just resolve the debate, they succeed by turning the anti-equality movement’s rhetoric against itself. This isn’t a victory; it’s a massacre.
Recall that DoMA’s § 3, codified at 1 U.S.C. § 7, reads (read?) as follows:
In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
Here, as Judge Tauro points out, is a true case of federal overreach. Tea party conservatives may go too far when characterizing any attempt by the federal government to guide personal decisions as (contradictorily) “socialism,” “fascism,” or “statism”; and they may get it flat wrong where they frame any attempt to preempt state law as contrary to whatever force remains in the Tenth Amendment. But the federal government has, for centuries, deferred to state definitions of marriage, even when applying federal law (Letourneau slip op., at 28-30).
What the Letourneau opinion implies, the Commonwealth opinion renders explicit. Marriage was a state issue at the Founding, and a colonial issue before then (Commonwealth slip op. at 3-8). Even King George’s Parliament left well enough alone. Therefore, any notion that restrictive definitions of marriage are ancient to the Republic, or that the Founders contemplated the federal government writing social policy, fails on an uncontradicted historical record.
These findings compel legal conclusions. If the Founders could not have intended to impliedly federalize marriage law, and provided Congress with no explicit, enumerated power for the regulation of social policy, the whole host of archconservative anti-federalist arguments suddenly acquire the teeth they lack elsewhere. Accordingly, we get passages like this:
It is a fundamental principle underlying our federalist system of government that “[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.” And, correspondingly, the Tenth Amendment provides that “[t]he 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.” The division between state and federal powers delineated by the Constitution is not merely “formalistic.” Rather, the Tenth Amendment “leaves to the several States a residuary and inviolable sovereignty.” This reflects a founding principle of governance in this country, that “[s]tates are not mere political subdivision of the United States,” but rather sovereigns unto themselves. [. . . .]
Congress’ powers are “defined and limited,” and, for that reason, every federal law “must be based on one or more of its powers enumerated in the Constitution.” As long as Congress acts pursuant to one of its enumerated powers, “its work product does not offend the Tenth Amendment.”
(Commonwealth slip op. at 22-23) (citations omitted).
But, because “marital status determinations are an attribute of state sovereignty,” not covered by the General Welfare Clause, the Tenth Amendment reserves the power to define domestic relations to the states (Commonwealth slip op. at 29).
This court has determined that it is clearly within the authority of the Commonwealth to recognize same-sex marriages among its residents, and to afford those individuals in same-sex marriages any benefits, rights, and privileges to which they are entitled by virtue of their marital status. The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment. For that reason, the statute is invalid.
This is clever. And it’s clearly right. Federal regulation of state social policy strikes at the core of the general police power, which all American federalisms, ever, have always reserved to the states.
But it might be too clever by half. The equal protection holding in Letourneau is clearly right. When it’s reversed on appeal, it’ll be a travesty, and a mockery of justice. The Tenth Amendment holding in Commonwealth, though, rests on no broad consensus. Should the Obama administration take an appeal from it, their arguments will be ridiculous. But, in dereliction of the rules of both war and appellate advocacy, appellees will be fighting on unfamiliar territory, or at least on a suboptimal battlefield, giving the enemy an advantage they didn’t earn, and don’t deserve.
Of course, the Obama administration doesn’t have to appeal…