Friday, July 9, 2010

I Got Your Tenth Amendment Right Here

Now that the Defense of Marriage Act (DOMA) has been found, in part, to be unconstitutional because it violates the Tenth Amendment, it will be a lot of fun to see how the Tea Party folk and the professional gay-bashers like it when one of their own arguments — states’ rights — is used to overturn a law that they support.

The arguments on the right are already starting to form; Judge Tauro overreached by using the Tenth Amendment to exclude federal interference in family values when it has been doing so since the New Deal. That’s a discussion that will probably get a lot of play in the Starbucks around law schools, but to the Tenthers and the people on the street with the tea bags in their hats, their arguments will probably go something like this: “Gay people can’t get married because… it’s icky!” and they are sure that the Founding Fathers certainly never considered gay people when they crafted the Constitution. In addition, they just can’t get their head around the concept of “equal rights under the law” as enshrined in the Fifth Amendment. But as the judge said in his ruling, an irrational prejudice does not constitute grounds for denying equal protection under the law, nor does it override the several states’ rights to establish their own laws for the regulation of marriage. That basically leaves the Tea Partiers and bigots with a lot of irrational spluttering, which is just about all they can do anyway.

The Obama administration will have little choice but to appeal the ruling. Even though the president says he opposes the law, it is the duty of the Department of Justice to defend the laws on the books. But for now, it’s a victory.