Who's Afraid of Federalism?

Gay marriage and the 10th Amendment

Last week a federal judge confounded both sides of the political spectrum by ruling that the 10th Amendment requires the federal government to recognize state-approved gay marriages. Progressives worried that U.S. District Judge Joseph Tauro's reasoning cast doubt on the constitutionality of many existing federal programs, while conservatives worried that it required equal treatment of same-sex unions.

Since I am one of the few Americans who welcome both of these outcomes, perhaps you should take my opinion with a grain of salt. But it seems to me that conservatives are engaging in the sort of result-oriented constitutional analysis they so often decry when they shrink from a consistent application of federalism because it lends support to a social trend they fear.

The 1996 Defense of Marriage Act (DOMA), which declared that states need not recognize same-sex marriages performed in other states, also decreed that more than 1,000 marriage-related provisions of federal law would be based on a definition that excluded gay couples. States that legalized same-sex marriage—such as Massachusetts, which brought this case—were therefore forced to contradict their own policies by discriminating against gay couples in federally subsidized programs.

In determining Medicaid eligibility, for example, Massachusetts had to count married people of the same sex as separate individuals rather than a single household. In operating two state-owned military cemeteries, it had to turn away spouses of veterans if they happened to be of the same sex.

By requiring Massachusetts to pretend that gay marriages do not exist in cases like these, Judge Tauro concluded, the federal government was impermissibly intruding on family law, "a quintessential area of state concern." He noted that the definition of marriage has long been viewed as a power "reserved to the states" by the 10th Amendment because it is "not delegated to the United States by the Constitution, nor prohibited by it to the States."

Tauro also relied on the principle of equal protection in overturning DOMA's exclusion of gay couples from federal benefits tied to marriage, having concluded in a related case that such discrimination fails even the highly deferential "rational basis" test. Although I've been skeptical of this argument in the past, I must admit that I am hard pressed to think of a rational reason for preventing the longtime spouse of a veteran from being buried alongside him, simply because both of them are men.

It's true that the people who wrote and ratified the Fifth and 14th amendments never imagined they were guaranteeing equal treatment for homosexual couples. But that's because the very notion of gay marriage would have been incomprehensible to them. Treating all married couples equally, without regard to sexual preference, seems like a straightforward application of equal protection to a situation the Framers 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).

But even conservatives who reject the equal protection argument should not lightly dismiss the assault on federalism represented by the attempt to impose a national definition of marriage on recalcitrant states. "In effect," says an especially well-informed critic of this policy, "DOMA's language reflects one-way federalism: It protects only those states that don't want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws—including immigration, Social Security survivor rights and veteran's benefits—has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions."

Writing in the Los Angeles Times last year, this critic declared: "It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves."

The author of that essay, former Georgia congressman Bob Barr, knows a thing or two about DOMA. He wrote it.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2010 by Creators Syndicate Inc.