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Kent Greenfield

Kent Greenfield

Posted: July 9, 2010 11:16 AM

The DOMA Supreme Court Question: Do the Conservatives Really Care About States' Rights?

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A federal judge in Boston has ruled unconstitutional the portion of the Defense of Marriage Act (DOMA) that limits federal benefits to straight couples even in states that recognize gay marriage. This is just the first inning in a long game that will eventually end up in the Supreme Court. The decision there will depend on whether the conservatives really believe in states' rights.

For almost 20 years, one of the pivotal debates on the Supreme Court has been the role of states' rights in limiting the power of the federal government. In cases on issues ranging from the possession of handguns in school zones to violence against women, the conservatives on the Court have argued that Congress cannot assert its power to regulate because doing so would encroach on "state sovereignty." According to the conservatives, areas of "traditional state concern" are protected by the 10th Amendment to the Constitution.

The contours of the 10th Amendment limitation have never been clear, mostly because the 10th Amendment itself is not clear. (It says that whatever powers the federal government does not have are left to the people or to states; it punts on what those powers actually are.) But one thing has been clear in the opinions of the conservatives on the Court: family law -- marriage, divorce, child custody -- is an area of traditional state concern. In both the handgun case (United States v. Lopez) and the violence against women case (United States v. Morrision), then-Chief Justice Rehnquist cited the federal regulation of family law as one of a parade of horribles that would arise if federal power got out of hand.

The federal judge in Boston struck down DOMA using these precedents, saying that "DOMA plainly intrudes on a core area of state sovereignty." The court also cited history, recognizing that "State control over marital status determinations is a convention rooted in the early history of the United States, predating even the American Revolution." The court emphasized the Supreme Court's language that "the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States."

This reasoning poses a real dilemma for states righters.

Up to now, the 10th Amendment has been used almost exclusively by conservatives who want to limit the federal government's power to protect our environment, restrict firearms, or punish racial discrimination. And it's been a powerful rhetorical tool -- it's been used to good effect by the Tea Party, for example, in fighting health care reform and Wall Street bailouts.

But the DOMA case turns the ideology around. The 10th Amendment is being used for a politically progressive goal -- to fight against federally mandated discrimination in an area of traditional state concern.

When it gets to the Supreme Court, if the Court is consistent with its previous statements about family law being out of bounds for the federal government to regulate, then DOMA should lose.

DOMA should lose for an additional reason. In the 1995 handgun case, Justice Anthony Kennedy -- always the swing vote -- explained his dedication to states' rights by referencing Justice Louis Brandeis's famous aphorism that states can serve as "laboratories" of democracy, trying "novel social and economic experiments without risk to the rest of the country." To Kennedy, the handgun statute needed to be struck down because it "forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise."

This same rationale works perfectly as a reason to question DOMA. In Massachusetts, the "experiment" of gay marriage has been a success. (It has the second lowest divorce rate in the country). The laboratory has worked, and it has shown the way for an increasing number of states to provide equality for their own citizens.