Jacob Sullum

Last week, a federal judge confounded both sides of the political spectrum by ruling that the 10th Amendment requires the federal government to recognize state-approved gay marriages. Progressives worried that U.S. District Judge Joseph Tauro's reasoning cast doubt on the constitutionality of many existing federal programs, while conservatives worried that it required equal treatment of same-sex unions.

Since I am one of the few Americans who welcome both of these outcomes, perhaps you should take my opinion with a grain of salt. But it seems to me that conservatives are engaging in the sort of result-oriented constitutional analysis they so often decry when they shrink from a consistent application of federalism because it lends support to a social trend they fear.

The 1996 Defense of Marriage Act (DOMA), which declared that states need not recognize same-sex marriages performed in other states, also decreed that more than 1,000 marriage-related provisions of federal law would be based on a definition that excluded gay couples. States that legalized same-sex marriage -- such as Massachusetts, which brought this case -- were therefore forced to contradict their own policies by discriminating against gay couples in federally subsidized programs.

In determining Medicaid eligibility, for example, Massachusetts had to count married people of the same sex as separate individuals rather than a single household. In operating two state-owned military cemeteries, it had to turn away spouses of veterans if they happened to be of the same sex.

By requiring Massachusetts to pretend that gay marriages do not exist in cases like these, Tauro concluded, the federal government was impermissibly intruding on family law, "a quintessential area of state concern." He noted that the definition of marriage has long been viewed as a power "reserved to the states" by the 10th Amendment because it is "not delegated to the United States by the Constitution, nor prohibited by it to the States."

Tauro also relied on the principle of equal protection in overturning DOMA's exclusion of gay couples from federal benefits tied to marriage, having concluded in a related case that such discrimination fails even the highly deferential "rational basis" test. Although I've been skeptical of this argument in the past, I must admit that I am hard pressed to think of a rational reason for preventing the longtime spouse of a veteran from being buried alongside him, simply because both of them are men.


Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
 
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