Opinion Roundup: Gay Rights Ruling Based on 10th Amendment Has Liberals Worried

(July 9) -- The ruling by U.S. District Court Judge Joseph Tauro that the federal Defense of Marriage Act -- signed into law by President Bill Clinton in 1996 -- is unconstitutional sparked a debate on the Web not so much about gay rights but about the 10th Amendment to the Constitution.

That's the one that reads: "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."

Tauro based his decision in one of the two cases on which he ruled on that amendment, arguing that the federal marriage law "plainly encroaches upon the firmly entrenched power of the state."

But Tauro's ruling sparked concerns among liberals about the implications that, if upheld, it would have on other federal policies.

Yale law professor Jack Balkin, for example, explained in his Balkinization blog that while he is "a strong supporter of same sex marriage," Tauro's "10th Amendment arguments prove entirely too much."

"As much as liberals might applaud the result," he wrote, "they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power."

David Dayen, writing for the liberal Firedoglake, agreed, adding that "Tauro's logic, taken to its extreme, would set off a tea party bonanza and a far more widespread use of the 10th Amendment to challenge federal statutes, and could potentially cripple Medicare, Medicaid and dozens of other social programs that take family organization -- and thus, state policy regarding family status -- into account."

And the American Prospect's Adam Serwer -- in a post titled "When Liberals Don't Like Liberal Judicial Activism" -- warned that "Despite approving of the outcome of the ruling, most liberals won't be happy with Tauro's 10th Amendment argument, since its logic could validate conservative legal arguments against the social safety net."

That was just fine for conservative blogger D. Daniel Blatt, writing for Gay Patriot. "I was delighted to learn that Judge Tauro had rooted his decision in the 10th Amendment" and that if it's upheld it would put the court "on record supporting limiting the powers of the federal government. This time, something which benefits gay people would be most welcome among principled conservatives."

However, Ed Morrissey wondered on the Hot Air blog why the 10th Amendment applied at all in this case, saying that the Defense of Marriage Act "retains federal jurisdiction on marriage definition for the purpose of spending federal money on partner benefits, which ... has nothing to do with the 10th Amendment."

The Volokh Conspiracy's David Kopel summed up the debate over the ruling this way: "As my former boss, Colorado Attorney General Duane Woodard, once put it, 'There's no liberal constitution or conservative constitution. It's just the Constitution.' The 10th Amendment is one of the roads that all conscientious American judges must travel, regardless of whether they personally like all of the places its leads."

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