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Jeff Jacoby

Who’s defending states’ rights?

By Jeff Jacoby
Globe Columnist / July 18, 2010

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ONE OF THE bigger tents in the history of American political thought, the one flying the states’ rights banner, has proved capacious enough over the centuries to accommodate everyone from Thomas Jefferson, James Madison, and John C. Calhoun to Strom Thurmond, William Rehnquist, and the defenders of Arizona’s immigration law. Now a new champion of states’ rights has appeared: US District Judge Joseph L. Tauro of Massachusetts.

In a pair of opinions earlier this month, Tauro struck down as unconstitutional Section 3 of the Defense of Marriage Act, which defines marriage for purposes of federal law to mean what it has traditionally meant: the union of a man and a woman. In Gill v. Office of Personnel Management, Tauro decided that the 104th Congress could not have had a “rational basis’’ for defining marriage as it did — he chalked up its motives to mere “animus’’ and “irrational prejudice.’’ From there it was a short hop to ruling that DOMA violates the due process clause of the Fifth Amendment.

In short, Gill reflects the familiar liberal self-righteousness on gay marriage: If you don’t agree with me, you must be a bigot.

But what shall we make of Tauro’s opinion in the second case, Massachusetts v. Dept. of Health and Human Services, which invalidates DOMA on the grounds that it violates the Tenth Amendment? That amendment provides: “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.’’ Under DOMA, federal programs do not regard same-sex couples as married — not even in Massachusetts, where same-sex marriage is allowed. Tauro held that to be an impermissible intrusion on “a core area of state sovereignty — the ability to define the marital status of its citizens.’’

Five times Tauro insists that each state has “exclusive’’ power to make rules about marriage. Even when it comes to the 1,138 references to marriage in the United States Code, he says, it is the individual state’s definition that must prevail, and no other. Red-blooded states’ right talk indeed!

But hold on. The Defense of Marriage Act itself upholds the states’ 10th Amendment right to define marriage as they see fit. Section 2 of DOMA — which is titled “Powers Reserved to the States’’ — explicitly affirms that states that do not recognize same-sex marriage need not defer to the “acts, records, and proceedings’’ of those that do. What could be more states’-rights-minded than that? Plainly, Congress was not only aware of the Tenth Amendment when it passed DOMA, but committed to defending that “core area of state sovereignty’’ of which Tauro is so solicitous.

Only when it came to the question of marriage within the context of federal law did Congress set male-plus-female as the national definition. But it could hardly have done otherwise — after all, 45 states use the same definition.

Yet Tauro maintains that in choosing that definition, Congress offended the Constitution and flouted centuries of precedent. “Prior to DOMA,’’ he claims, “every effort to establish a national definition of marriage met failure . . . The federal government consistently yielded to marital status determinations established by the states.’’

Not so. For the better part of 60 years, the federal government was uncompromising in its refusal to permit polygamy anywhere in the United States. The admission of Utah, Arizona, Oklahoma, and New Mexico as states was conditioned on their banning “polygamous or plural marriages . . . forever.’’ That condition was spelled out in federal statutes — statutes that to this day bar those states from altering that ban without the approval of the federal government.

Still, let’s say Tauro is right, and that under the Constitution, the rules of marriage are for each state to decide for itself. That can only mean that in the 45 states that don’t permit gay marriage, Tauro wouldn’t hesitate to dismiss a federal challenge aimed at legalizing same-sex wedlock. So if Tauro were the federal judge in California who is being asked to invalidate Proposition 8 — the state amendment restricting marriage to opposite-sex couples — he wouldn’t hesitate to dismiss it. Or does the judge’s support for states’ rights only extend to states where gay marriage is lawful?

Jeff Jacoby can be reached at jacoby@globe.com.

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