When Liberals Don't Like Liberal Judicial Activism.

Yesterday in Massachusetts, a federal judge ruled that the Defense of Marriage Act, a Clinton-era federal law that defines marriage as being between a man and a woman, violated the 10th Amendment because it infringes on the states' right to define marriage. In a separate case, Judge Joseph Tauro also ruled that the DOMA ban violates the "equal protection principles embodied in the Fifth Amendment" by denying federal benefits to same-sex unions.

If you've been paying attention to the health-care debate, you know that a number of conservatives, derisively referred to by some liberals as "Tenthers," believe the 10th Amendment makes the health-care law's individual mandate, which comes in the form of a fine on people who don't buy health insurance, unconstitutional. It's both kind of an old and a new thing.

Liberal legal scholar Jack Balkin writes that Tauro's two opinions are "at war with each other":

To be sure, there is something delightfully playful and perverse about the two opinions when you read them. Judge Tauro uses the Tenth Amendment -- much beloved by conservatives -- to strike down another law much beloved by conservatives -- DOMA. There is a kind of clever, "gotcha" element to this logic. It is as if he's saying: "You want the Tenth Amendment? I'll give you the Tenth Amendment!" But in the long run, this sort of argument, clever as it is, is not going to work. Much as I applaud the cleverness -- which is certain to twist both liberal and conservative commentators in knots -- I do not support the logic.


In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?

Despite approving of the outcome of the ruling, most liberals won't be happy with Tauro's 10th Amendment argument, since its logic could validate conservative legal arguments against the social safety net.

As for the equal-protection argument, Balkin writes that the ruling is "way ahead of the national consensus on the the equal protection issue." Probably. As Gabriel Arana reported, that's certainly a concern moving forward with Perry v. Schwarzenegger. But the window of time during which Democrats equivocate by supporting civil unions instead of marriage equality is coming to a close -- at some point soon those politicians sitting on the fence are going to have to pick a definitive side and risk the political consequences of either alienating the LGBT vote or their other, more religious core constituencies. That may happen before there's a genuine "national consensus" in favor of marriage equality.

A key question is whether the Obama administration will appeal the ruling, and, as Jake Tapper reports, they probably will.

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