July 8, 2010

Federal Defense of Marriage Act Unconstitutional

In Boston today, U.S. District Judge Joseph Tauro ruled that the Federal Defense of Marriage Act is unconstitutional.  If you're following the same-sex marriage issue, whether you're pro-SSM or anti-SSM, this is an appropriate time for you to let out a long, low whistle, because this is the biggest development in the field since California's Proposition 8.

TO BE UPDATED -- More later when I have time to add it.  I can't find the opinion at the D.Mass court yet and I need to pay attention to something else at this moment.  -- No wait, there are two opinions, one invalidating DOMA on equal protection grounds (finding a failure to meet the "rational basis" test, no less), and the other invalidating it on Tenth Amendment grounds ("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").

1 comment:

Mike said...

The ruling is odd, to be sure.

As far as the "rational basis" test, the judge's idea is specious at best. The idea that a state "the act forces Massachusetts to discriminate against its own citizens in order to be eligible for federal funding in federal-state partnerships" - theoretically, a state must also keep its speed limits within certain allowed speeds set by the federal government to qualify for federal highway partnerships, and must discriminate against its citizens by keeping its drinking age to a minimum 21 years of age or else lose the benefit of various portions of federal funding. Given the long history of "carrot and stick" appropriation of federal funding, it's very odd to see a judge ignore decades of jurisprudence regarding this, even moreso when dealing with a program that is administered, and controlled, on a universally Federal level rather than differently amongst each State.

As far as the Tenth Amendment grounds, this is equally dubious, since the DOMA is covered by Congress's right to mediate disputes between the states arising from the Full Faith and Credit clause (Article IV, Section I: And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.) This is also consistent with existing precedent in the US Supreme Court, McElmoyle v. Cohen, which established clearly that judgements issued in one state are still subject to the laws and procedures of a state in which they would be enforced (the case in question involved jurisdiction-shopping to South Carolina in an attempt to do an end-run around the shorter Georgia statute of limitations on legal judgements, and the US Supreme Court ruled that the judgement was unenforceable in Georgia).

Congress's ability to rule in this matter is also enhanced by the fact that it is affected by treaties with the various Indian Tribes, mentioned in the DOMA's text (No State, territory, or possession of the United States, or Indian tribe, shall be required...). That places a higher standard again for someone to rule it "unconstitutional."

Further, the balance of existing law already permits states to not recognize certain other marriages contrary to the relevant state laws. It's still a federal felony to transport a minor across lines in order to "marry" them (or simply dodge age-of-consent laws), and certain states do not recognize marriages performed in other states that would have one or both parties considered underage, and therefore unable to consent, in the state in question.

I can't see where this judge's ruling has a leg to stand on.