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Decimated

Last week, a federal judge struck down part of the Defense Of Marriage Act. That law, signed by President Clinton, specifically forbade federal recognition and sanction of gay marriage, and declared that same-sex marriages were not covered by the Full Faith And Credit clause of the Constitution and therefore states that did not allow gay marriage did not have to honor same-sex marriages performed in a state that did allow them.

This ruling not only did not surprise me, but it gives me great, great hope -- in areas outside of gay marriage.

In his ruling, the judge specifically cited the 10th Amendment of the U.S. Constitution and said that marriage falls strictly under the purview of the states, not the federal government, and the federal government had overstepped its bounds in passing the law.

Personally, I've long been a supporter of same-sex marriage. However, I've always conditioned that support on it being implemented in the correct fashion -- by the will of the people, expressed either through referendum or their elected representatives. I have been quite displeased by the cases in Massachusetts and California, where it was done by judges' fiats -- and in direct contravention with the expressed wishes of the majority.

Likewise, I've never cared for the Defense of Marriage Act. I thought it was against the Constitution on several grounds.

But I was exceptionally happy when the judge issued his ruling paving the way for expanded gay marriage -- because that quite liberal judge opened a door that he (and a lot of others) will likely wish had remained closed.

In his ruling, Judge Joseph Tauro specifically cited the 10th Amendment, one of my favorites. It reads in its entirety:

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.

Now, I know my stance on gay marriage isn't one of my most popular positions here. But look beyond the actual subject of the ruling, and see the bigger picture.

It is now the law of the land that the federal government has limited authority to dictate who can marry whom. That is derived by looking at the powers given to the federal government by the Constitution (which includes all the Amendments), and specifically says that the States can decide what other powers the federal government can or can not have.

In other words, while the federal government holds supremacy on matters where the Constitution gives it final say, in all other matters the States can dictate what the federal government can and can not do.

Such as, say, whether the federal government can force everyone to prove that they have health insurance that the feds consider "sufficient."

Or, say, whether or not one can possess firearms.

Or, if you like, whether or not one can indulge in certain forms of recreational pharmacy.

This could be the antidote to the increasingly and insanely abused "commerce clause," where the federal government decides that it can intervene on any matter if they can find some remote way that it might "affect interstate commerce." That sucker's been stretched well beyond the breaking point for ages. One example has been people who grow just a bit of marijuana purely for their own use -- they MIGHT decide to sell it instead, and it MIGHT end up crossing a state line somewhere, so therefore it's a federal matter.

So while all the liberals who champion gay marriage at any price, by any means, celebrate, I'm raising a glass myself. Because in their zeal, they've unleashed a weapon that could very well destroy so many of their over-ambitious, overreaching, unconstitutional dreams.

"Power To The People," indeed.


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Comments (23)

UGH!... (Below threshold)
Don L:

UGH!

"Personally, I've long been... (Below threshold)
a. moral:

"Personally, I've long been a supporter of same-sex marriage. However, I've always conditioned that support on it being implemented in the correct fashion -- by the will of the people, expressed either through referendum or their elected representatives. I have been quite displeased by the cases in Massachusetts and California, where it was done by judges' fiats -- and in direct contravention with the expressed wishes of the majority."

So if DOMA is unconstitutional, there will be no referendum. Marriages will HAVE to recognized in all other states notwithstanding the expressed wishes of their majorities. Is this the "correct fashion" you were referring to?

Jay, I agree with you about... (Below threshold)
recovered liberal democrat:

Jay, I agree with you about the liberals shooting themselves in the foot. However if states allow gays to be recognized as married you open up the possibility for recognition of all sorts of unions. How could you discriminate?
Any couple can sit down with an attorney and draw up an agreement or power of attorney and in effect be married. A small minority want to push an agenda on the majority. The discrimination law suits that would be opened up if this is passed would tie the courts up for nothing else.

Just like marijuana and sea... (Below threshold)
914:

Just like marijuana and seat belt laws, I think thier are some thing's that do not need a law. Of course the above are about making money for the state.

I could also throw in Dr. Death here as in, 'Im in pain and I want it to cease, dont dare try to tell Me I cannot terminate My life.'

I have a feeling that the c... (Below threshold)
James H:

I have a feeling that the circuit court's going to slap him down for going off the reservation n the 10th Amendment. The Prop 8 lawsuit, on the other hand, has more potential. That action, as I understand it, is thoroughly grounded in 14th Amendment jurisprudence and has a couple very, very smart lawyers pressing the case. Also, the judge there has questioned both sides pretty thoroughly.

Now, as to the gay-marriage question, I support it, but I prefer the situation resolved by institutions other than federal courts. Either state legislators, acting as proxies for their citizens, or state courts, in their capacities as arbiters of their state constitutions, should decide an issue that is, at heart, an issue of state law.

Jay Tea, if you wish to go ... (Below threshold)
OLDPUPPYMAX:

Jay Tea, if you wish to go on kidding yourself, please do so. That is, after all, still your right--for now at least. But if you believe for one moment that leftists will become ensnared by their own hypocrisy, you've a great deal to learn about the left. By now you should be fully aware of the extent to which the Constitution is ignored, prostituted and deliberately misinterpreted by the left for its own purposes. This ruling will have no effect whatever on the next or the next.

Any couple can sit... (Below threshold)
iwogisdead:
Any couple can sit down with an attorney and draw up an agreement or power of attorney and in effect be married.

Not really. There are a whole host of rights that go along with being married that can't be conveyed by a contract between the parties. For instance, Social Security benefits, estate claims, rights on wrongful death of, or injury to, a spouse, medical insurance benefits, certain spousal immunities, evidentiary privilege, etc.

By the way, the FF&C clause has never forced a state to recognize a decision or judgment which violated that state's public policy. Recognition of a gay marriage would most certainly fall into that category.

I'm not counting on this decision to do much to the Commerce Clause, though.

The one thing Jay and many ... (Below threshold)
Deke:

The one thing Jay and many others forget is that the Federal government weilds a much larger hammer than just the legislative one, they have the power of the purse strings.

Case in point, Louisiana was the last state to raise the drinking age to 21, they surmised that if your old enough to fight for your country your old enough to drink, and the tax revenue was important, Fed's threaten to withold highway and other funds, drinking age is raised to 21.

Texas refuses to follow judge rulings on prisons, threatened with fund witholding, judge is accepted as caretaker of "civil rights" for prisoners. The list goes on and on.

That's why federal legislation, such as DOMA, are important, it gives a good sense of where the country is and gives support to states who are not in favor of certain agendas. The minute the majority of Congress supports gay marriage, or banning of guns, or religious freedom, no matter how much a state does not want it, they will be forced, by threat, to accept.

"Marriages will HAVE to rec... (Below threshold)
Gmac:

"Marriages will HAVE to recognized in all other states notwithstanding the expressed wishes of their majorities."

In a word? NO ... its to be decided at a STATE level and each INDIVIDUAL state.

This is going to have "Unintended consequences"
My my, the shadenfreude is going to be delicious.

While I do not support same... (Below threshold)
KeithK:

While I do not support same-sex marriage I do agree that the 10th amendment line of reasoning *if it stands* might be great news for the future of constitutional interpretation. But this ruling isn't the law of the land. It's simply the law for the moment in one federal court district. it wouldn't be the law of the land or have the impact you are looking forward to unless and until affirmed by the Supreme Court. As someone else here said, I really doubt it will be affirmed (and almost certainly not on 10th grounds.)

"Because in their zeal, the... (Below threshold)
GarandFan:

"Because in their zeal, they've unleashed a weapon that could very well destroy so many of their over-ambitious, overreaching, unconstitutional dreams."

Don't celebrate quite yet. Liberals take a "nuanced" approach to what will and what won't pass muster under the 10th Amendment.

I hear what you are saying ... (Below threshold)
WildWillie:

I hear what you are saying JT, but Oldpuppy is correct. Liberals have no problem with hypocrisy. They will find a way to segragate this argument from any further "States Rights" cases. ww

Also Roe vs Wade could be c... (Below threshold)
CODEKEYGUY:

Also Roe vs Wade could be challanged here also. That is ALSO a "state right" isn't it???
I'll accept the gay marriage if you accept "no abortions" under this ruling!!!!!

Roe v Wade should have alwa... (Below threshold)
WildWillie:

Roe v Wade should have always been a states rights problem. When it became a political tool, it became untouchable for a great while. Same with Aids in the early 1980's. Politics trumped common sense on how to handle the crisis. To a lot of people detriment. ww

"Marriages will HAVE to ... (Below threshold)
Dawnsblood:

"Marriages will HAVE to recognized in all other states notwithstanding the expressed wishes of their majorities."

In a word? NO ... its to be decided at a STATE level and each INDIVIDUAL state.

Jay said up top:
"That law, signed by President Clinton, specifically forbade federal recognition and sanction of gay marriage, and declared that same-sex marriages were not covered by the Full Faith And Credit clause of the Constitution and therefore states that did not allow gay marriage did not have to honor same-sex marriages performed in a state that did allow them"

If that law is struck down then it kinda gets really easy to imagine a gay marriage preformed in say Mass would have to be accepted as valid in say Utah. That sounds an awful lot like the first sentence quoted. That doesn't sound like what you concluded. . .

I don't wanna be one of tho... (Below threshold)
Bruce Henry:

I don't wanna be one of those people who compare every issue to the Civil Rights movement, but in this case, gay marriage, there is one striking parallel:

Gay marriage may not EVER be approved by referendum in many states, or by their state legislatures, either. Just as the Jim Crow states would STILL "enjoy" segregated schools and segregated everything else if it had been left to "the will of the [local] majority." It took Brown v Board of Education to get the schools integrated in the South. The school district I lived in back then dragged its feet DESPITE the law until SIXTEEN YEARS LATER.

But despite the fact that integrated schools and integrated restaurants, equal job opportunities and equal housing opportunities most definitely were NOT the "will of the majority" at the time, they were the right things to do, legally and morally. As, in my opinion, marriage equality is today.

Bruce, no comparison at all... (Below threshold)
WildWillie:

Bruce, no comparison at all. Not even close. I just don't care to get into the details. ww

Bruce, an interesting point... (Below threshold)

Bruce, an interesting point. But would you care to elaborate on your thesis there, with specific attention paid to Plessy v. Ferguson and the 1964 Civil Rights Act?

J.

Race is a protected class u... (Below threshold)
a. moral:

Race is a protected class under the Constitution, requiring a compelling state interest to pass a law that discriminates on that basis. Homosexuality is not and so the state only needs a rational basis for the law, which is a much lower standard. Reasonable minds can argue whether a rational basis exits for prohibiting it. The fact that so little is still known about it (nature vs. nurture), perhaps a state has a rationale basis for allowing people to live as they wish (tolerance) as opposed to openly promoting it by calling it a marriage (acceptance). If a state approves gay marriage by referendum or through its elected officials, that's preferable (according to Jay Tea and others). The question is whether every other state has to recognize the marriage. I believe a state can refuse to recognize it if it is against its public policy, but the again I think it's a steeper burden for the state on those grounds. DOMA was voted for and signed by Clinton for a reason, and they knew it would be challenged. Again I defer to the legal eagles out there, but I think those states that have in the interim passed a state constitutional amendment defining marriage between a man and a woman would have a better argument against having to recognize a foreign marriage. If this basic analysis is incorrect, have at it. I am happy to learn.

Well, I wish those gay marr... (Below threshold)
rich K:

Well, I wish those gay married folk all kinds of luck getting spousal death benefits and other such things from a fed that doesnt recognize them.

Re # 18:While I'm ... (Below threshold)
Bruce Henry:

Re # 18:

While I'm not a legal historian, Mr Tea, it's my understanding that Plessy was simply an incorrect decision. Segregated schools existed before Plessy and continued to exist afterwards. However, Plessy didn't prohibit INTEGRATED schools - they existed most places except the Jim Crow South.

I don't see a point in your reference to the Civil Rights Act of 1964, unless you are attempting to introduce the old "Democrats were against it" bullshit I've debunked so many times before here on Wizbang. The argument back then was NOT Dem vs GOP - it was conservative vs liberal.

Liberals won that fight, thank God, and the South was lifted out of its Third World status and brought into the modern era.

Bruce, I'll try to do this ... (Below threshold)

Bruce, I'll try to do this without being condescending. If it comes across that way, I apologize.

It took Brown v Board of Education to get the schools integrated in the South. The school district I lived in back then dragged its feet DESPITE the law until SIXTEEN YEARS LATER.

Plessy v. Ferguson was the law of the land for over 50 years. It wasn't just "simply an incorrect decision." It was wrong.

On the other hand, the 1964 Civil Rights Act was "the will of the people," enacted by duly elected representatives.

My intention in bringing them up was to point out the problems with your preference to court rulings versus legislation. One court ruling held back civil rights for over half a century, and directly led to some of the greatest racial injustices of the 20th century.

When a legislature gets something wrong, the people can fix it fairly easily. At least, a lot easier than "an incorrect decision."

That's why I approve of how gay marriage came to be in New Hampshire and Vermont, and oppose how it was done in Massachusetts and California. And why your view of the "right" way to win a civil rights battle bothers me.

J.

I'm not necessarily of the ... (Below threshold)
Bruce Henry:

I'm not necessarily of the opinion that court rulings are always better than referendums or legislation, Mr Tea. Just pointing out that, at least as per school desegregation in the South, it never would have happened absent a court ruling. And, I fear, marriage equality may never be the "will of the majority" in many states. Or at least not for many years.

I'm not claiming the Supreme Court is infallible, as Dred Scott, Plessy, and now this Citizens United ruling so plainly shows. But it is a perfectly acceptable, even desirable way, SOMETIMES, for an oppressed minority to obtain its rights despite the "will of the majority." Sometimes it's the ONLY way. As I said, the South may have suffered another 50 years of Jim Crow if not for Brown v Board.




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