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.
So 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.
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