The problem with Judge Joseph Tauro's opinion holding that the Defense of Marriage Act is unconstitutional isn't the policy outcome. DOMA was a disgrace, and signing it was one of the low points of the Clinton administration and one of many low points of recent Republican Congresses. The problem is that one of his justifications for holding the law unconstitutional is not merely wrong but pernicious, and the other one is better but has almost no chance of surviving appeal.
As Jack Balkin notes, if taken seriously Tauro's holding that DOMA violates the 10th Amendment would have radical and extraordinarily reactionary consequences. I can understand the impulse to lay the hypocrisy of "state's rights" Republicans bare. But even if you are a lot more sympathetic to the Supreme Court placing limits on congressional authority than I am, Tauro's argument here is extremely weak. It's far from clear why the federal government defining marriage for the purposes of its own laws represents an unconstitutional intrusion on the state of Massachusetts (which remains free under DOMA to recognize same-sex marriages for its own purposes). The only way of making the case is if the federal powers implicated by definitions of marriage themselves are unconstitutional, an argument that would return us to an 18th-century night-watchman federal state. The cure in this part of Tauro's opinion would be far, far worse than the disease.
Andrew Koppleman is correct that the equal-protection rationale offered by Mauro's second opinion is much stronger. There's a severe burden on anyone arguing that legislation is actually irrational, but DOMA is indeed bad enough that the argument is plausible. Here, my issue is more practical: I very much doubt that an argument that DOMA can't even survive a "rational basis" test will survive the higher courts. Justice Kennedy's opinion that an anti-gay Colorado ordinance was irrational provides a ray of hope, but my guess is this is where Kennedy gets off the bus.
DOMA should be repealed, and I would have no problem with the Supreme Court ruling it an unconstitutional violation of the equal-protection clause either. But, unfortunately, I think it may be too soon for the latter to happen.
--Scott Lemieux
