Federalism, Liberty, and Gay Marriage

During last week’s oral arguments over Section 3 of the 1996 Defense of Marriage Act, Supreme Court Justice Anthony Kennedy repeatedly suggested that he saw the law as an unconstitutional overreach by Congress. “The question,” Kennedy said “is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.”

If Kennedy holds to that view, and if the Court’s liberals maintain their apparent willingness to strike down DOMA as a violation of equal protection, Section 3 will likely fall. This would be a major victory for the gay rights movement, which has long opposed the Defense of Marriage Act. But it would not be a victory that was universally celebrated on the American left, as evinced by the words of liberal law professor Erwin Chemerinsky, the founding dean of the University of California, Irvine School of Law. Writing at SCOTUSblog, Chemerinsky worries about the implications of Kennedy’s federalist position:

He emphasized that marriage is something traditionally regulated by the states.   This seems to be an argument based on the Tenth Amendment and the idea that that provision reserves to the states exclusive control over certain matters.

But not once since 1937 has the Supreme Court endorsed that view.   Since 1937, the Court only has found Tenth Amendment violations where Congress has commandeered states and forced them to enact laws or adopt regulations.   DOMA does not do that.  For the Court to hold that the Tenth Amendment leaves some matters, like marriage, exclusively to the states would be a radical change in constitutional law.

That’s one way of looking at it. Another is that sometimes a win for liberty is a loss for the views held by liberal law professors.

For more on the federalist case against the Defense of Marriage Act, see here.

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  • SIV||

    Gay marriage is so last week. What about food trucks?

  • Fist of Etiquette||

    For the Court to hold that the Tenth Amendment leaves some matters, like marriage, exclusively to the states would be a radical change in constitutional law.

    Ha! The gays have stabbed the statists and central planners in the back.

  • Pro Libertate||

    A radical change in the systematic coup d'etat that's been perpetrated on us over the last two hundred years, yes, but not so much in the Constitution itself. It couldn't be much clearer that if the power wasn't listed in the Constitution, it either belongs to the states or to individuals. It's supposed to be our default position.

  • Fist of Etiquette||

    Maybe a position held by wannabe slave owners like yourself, but not by the enlightened.

  • Pro Libertate||

    If they're so right, why not amend the Constitution? Should be easy to do, since the rich are a minority.

  • Brandybuck||

    "Article IV, Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

    If you get married in one state, you are married in all states, and Congress has the authority to enforce that.

  • DJK||

    I'm unconvinced that it matters what position Kennedy holds. If he votes to strike down DOMA, his position would not be the majority position. No way the liberal bloc is willing to sign onto a federalism ruling. It would be a concurring opinion with no precedential value.

  • Almanian!||

    Gay marriage is gay. What about circumcision and its effects on the preference for pizza (deep-dish v thin crust) among home brewers?

  • Zeb||

    I propose a compromise. Only circumcised gay guys can get married. Deep dish pizza vendors can be fined for refusing to cater gay weddings, but thin crust places are exempt. And free abortions for gay men only.

  • DJK||

    Equal protection against persecution based on religious beliefs.

  • Almanian!||

    ...aaaaand the ad for "Cougar Life dot Com" shows up....

    Coincidence? You be the judge...

  • tarran||

    What's the more libertarian editor, vi or emacs?

  • Zeb||

    Probably vi, but I just can't be bothered.

  • robc||


    Okay, maybe not the most libertarian, but clearly superior.

  • robc||

    vi is a lot like libertarianism, in that there is a steep learning curve, but it all makes sense once you understand it.

  • DJK||


  • Brandybuck||

    Vladimir Putin is so manly he doesn't use an editor. He uses cat.

  • Brandybuck||

    vi, because emacs was created by a socialist asshole

  • thom||

    I wonder how this will impact other areas where the Federal Government has imposed it's definition of something on the states, such as REAL ID.

  • DJK||

    Not at all. As I mentioned upthread, Kennedy's position doesn't matter at all. If he strikes down Section 3 based on a federalism argument, he will be the only Justice voting to do so. The majority will rule on Equal Protection grounds. And that's what the precedent will be. For all intents and purposes, Kennedy's federalism argument will be useless.

  • mad libertarian guy||


    It clearly states that federal mandates forced on states have been deemed unconstitutional, which isn't at all what DOMA does.

  • mad libertarian guy||

    Since 1937, the Court only has found Tenth Amendment violations where Congress has commandeered states and forced them to enact laws or adopt regulations.
  • IceTrey||

    DOMA doesn't try to regulate how the states define marriage. It only regulates what the Federal government will accept as a legitimate marriage license.

  • Trash Hauler||

    I doubt that anyone here needs reminding that Chemerinsky was also a big "Of Course Obamacare Is Constitutional" guy.


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