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.