How I Learned to Stop Worrying and Embrace the Equal Protection Argument for Gay Marriage


Yesterday a federal judge in Massachusetts ruled in two related cases that the federal policy of denying marriage-related benefits to same-sex couples violates the 10th Amendment and the right to equal protection guaranteed by the Fifth Amendment's Due Process Clause. Although that first conclusion has drawn more attention, since it employs what is usually seen as a "conservative" principle for "progressive" ends, the equal protection argument (which is also the basis for the challenge to California's gay marriage ban) is the crux of both decisions.

In one case (PDF), "seven same-sex couples married in Massachusetts and three survivors of same-sex spouses, also married in Massachusetts," challenged the rules for federal employee health coverage, Social Security benefits, and joint filing of tax returns. The plaintiffs argued that in treating gay and heterosexual couples differently, as required by the Defense of Marriage Act, these rules violate the principle of equal protection, which requires (as the Supreme Court has put it) that "all persons similarly situated should be treated alike" by the government. U.S. District Judge Joseph Tauro agreed, finding that the policy of denying homosexual couples the benefits that heterosexual couples receive flunks even the highly deferential "rational basis" test. Since I've never found the arguments against recognizing gay marriage persuasive, I'm inclined to agree, although Tauro is breaking with precedent by defining rational as "rational."

In arguing that the Defense of Marriage Act should be upheld, the Obama administration distanced itself from the lame justifications cited in the text of the law and offered an even lamer one: It said DOMA is necessary to freeze the "status quo" while the issue of gay marriage is debated. Still, opponents of gay marriage clearly think they have good reasons for denying health coverage, survivor benefits, and burial plots to the spouses of gay people, and they would argue that homosexual and heterosexual couples are not "similarly situated."

But you know what? Screw them. I am tired of defending the constitutional principles that social conservatives use to restrict liberty, because they so rarely return the favor by supporting those same principles when the effect is to expand liberty. When a supposedly principled originalist like Antonin Scalia can endorse a ridiculously broad reading of the Commerce Clause because the case happens to involve pot, why should I stick my neck out by arguing that the people who wrote and ratified the Fifth and 14th amendments never imagined they were guaranteeing equal treatment for homosexual couples? Of course they didn't, because the very notion of gay marriage would have been incomprehensible to them. But the 14th amendment says no state may "deny to any person within its jurisdiction the equal protection of the laws," and the Supreme Court has long read the Fifth Amendment's Due Process Clause as imposing a similar restriction on the federal government. Treating all married couples equally, without regard to their sexual preference, seems to me (and Ted Olson!) like a straightforward application of this principle to a new situation, one that the authors of these provisions could not have foreseen, just as they did not foresee television (which is nevertheless protected by the First Amendment) or wiretaps (which are nevertheless governed by the Fourth Amendment).

Is this a constitutional rationalization for my pre-existing policy preferences? Yes, but I think it's a pretty good one. I would much prefer that the government get out of the business of certifying marriage altogether. But as long as more than 1,000 provisions of federal law hinge on marital status, the government will have to decide which couples qualify, and basic fairness demands that sexual preference play no role in that determination. What legitimate government interest can possibly justify preventing the longtime spouse of a veteran from being buried alongside him, simply because both of them are men? This sort of thing really is shameful.

Because Judge Tauro found that DOMA's rules regarding federal benefits fail the "rational basis" test, he ruled in a second case that requiring states to uphold these rules as a condition of federal funding is unconstitutional as well. He also concluded that requiring Massachusetts to discriminate against gay couples in administering Medicaid and running two state-owned military cemeteries, contrary to its own marriage law, intrudes on "a quintessential area of state concern" and thereby violates the 10th Amendment, which says "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."

Jack Balkin, the left-liberal Yale law professor who argues that Congress can regulate anything that affects interstate commerce in any way, is not thrilled by the 10th Amendment argument, which he worries would "take down a wide swath of programs—you can't even list the number of programs that would be affected." And the problem is? Likewise, although social conservatives like to talk about limits on federal power when it serves their goals, I suspect these fair-weather federalists will not be happy about Tauro's respect for the 10th Amendment.