08/09/2009 05:12 am ET Updated May 25, 2011

The New Federalism Attack on DOMA: Does the Supreme Court Really Care About 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 ranging from nuclear waste disposal, the possession of handguns in school zones, and 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: that 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.

Soon we'll find out if the conservatives really believe it.

Earlier this week, the Commonwealth of Massachusetts filed suit against the United States, claiming that the federal Defense of Marriage Act violates the right of the Commonwealth to define marriage for its citizens. It's the kind of thing that makes me proud to call Massachusetts home.

The target of the suit is the part of DOMA, Section 3, that establishes a federal definition of marriage as being between one man and one woman. (Massachusetts is not challenging Section 2 of DOMA, which protects the ability of one state to refuse to recognize a gay marriage solemnized in another.)

According to the suit, DOMA "interferes with the Commonwealth's exclusive authority to determine and regulate the marital status of its citizens," overturning two hundred years of federal deference to state definitions of marriage. Because Massachusetts recognizes same-sex marriages, DOMA costs the state millions of dollars a year, since the federal government refuses to pay its share of Medicaid costs for same-sex partners. DOMA also prohibits Massachusetts from burying same-sex spouses in veterans' cemeteries, even though Massachusetts owns the land and operates the cemeteries. The suit alleges that DOMA essentially "commandeers" the Commonwealth and its employees to be "agents of the federal government's regulatory scheme and ... discriminatory federal policy."

The brilliant, sweet irony of the suit is that it is based expressly on the 10th Amendment. The complaint alleges: "Section 3 of DOMA violates the Tenth Amendment, exceeds Congress's Article I powers, and runs afoul of the Constitution's principles of federalism."

The 10th Amendment has been used almost exclusively by those who want to limit the federal government's power to protect our environment, regulate firearms, punish hate criminals, and the like. And it's been a powerful rhetorical tool. But now, the 10th Amendment is being trotted out to fight against federally mandated discrimination in an area of traditional state concern. If the Court has been honest about family law being out of bounds for the federal government to regulate, then it should be an easy case.

It should be an easy case for an additional reason. In the 1995 handgun case, always-the-swing-vote Justice Anthony Kennedy 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. (We have the second lowest divorce rate in the country). Our laboratory has worked, and it has shown the way for an increasing number of states to provide equality for their own citizens.

Let's hope the federal courts protect the laboratory.

Subscribe to the Politics email.
How will Trump’s administration impact you?