an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Faking out Jack Balkin is no small accomplishment, but Judge Tauro managed to do it in his powerful although flawed opinions yesterday invalidating the definitional provision of the federal Defense of Marriage Act.
Judge Tauro’s opinions invalidate DOMA on two grounds: it invidiously discriminates against same-sex couples in violation of the Equal Protection Clause of the Fourteenth Amendment, and it invades states’ prerogative to define marriage in violation of the Tenth Amendment. Jack correctly observed, in this blog and in statements quoted in a front page story in the New York Times, that the second of these is a lousy argument with mischievous implications. But the bad argument is surplusage. The Equal Protection argument is enough to invalidate the law.
The court decided two cases, one brought by same-sex spouses who were denied federal benefits, and one brought by the state of Massachusetts. In the first case, the court held that the law lacked a rational basis, because none of the government’s justifications for the law’s blanket discrimination made any sense. Read the opinion: those justifications don’t pass the giggle test. As I’ve argued elsewhere, this is a remarkably slapdash, blunderbuss statute. The lack of a rational basis, and the unprecedented burden it imposes – no class of marriages had ever before in American history been subjected to this kind of discrimination – supported the inference of a bare desire to harm a politically unpopular group.
In the Massachusetts case, on the other hand, the court relied on states’ rights. But it reached that conclusion on the basis of two independent arguments, only one of which relied on the incoherent idea of core state government functions. The other, better, argument was that a state can’t be required to violate the Constitution in order to get federal funds. This argument is parasitic on the holding in the other case: if DOMA is unconstitutional, then states can’t be denied federal funds when they refuse to administer it. For example, if DOMA’s requirement that same-sex couples be excluded from veterans’ cemeteries is unconstitutional, then Massachusetts can’t lose its federal funding when it buries a same-sex couple in a state-administered cemetery.
I wish that Massachusetts’ attorneys hadn’t made the sovereignty argument. There is a temptation in litigation to make every argument you can possibly think of, hoping that something will persuade the judge. Here, though, that strategy has backfired: the judge bought both arguments, the bad one as well as the good one, and so his opinion looks – and is now portrayed in prominent venues as being - weaker than it really is. The bad argument was so conspicuously bad – Jack is absolutely right about how bad it is - that it distracted his attention from the good one.