Ari Ezra Waldman | DOMA | Gay Marriage | News

The DOMA Cases -- The 10th Amendment Tango


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His areas of expertise are criminal law, criminal procedure, LGBT law and law and economics. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

The last amendment in the Bill of Rights sounds simple: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It is pretty clear that this clause was animated by the anti-Federalist concern about a strong central government and the amendment's inclusion in the Bill of Rights was central to gaining enough votes to ratify the Constitution. It is also clear that this clause is less protective of states' rights than its predecesor in the Articles of Confederation and the Framer's decision to include broad language in Article I -- the section that grants powers to Congress -- belies the simple anti-government meme.


The 10th Amendment has become increasingly important in legal circles over the last thirty years, as conservative scholars have sought constitutional bulwarks against the welfare state and social legislation. It is not surprising, then, that the 10th Amendment figures into LGBT law, specifically with regard to the Defense of Marriage Act (DOMA).

Judge Joseph Tauro, the Republican-appointed Boston distrct judge who declared DOMA unconstitutional in July, 2010, and President Obama are dancing to different tunes. I am not talking about DOMA -- both Judge Tauro and the President don't think the law should be on the books; rather, it is their take on the 10th Amendment that differs.

Judge Tauro thinks DOMA is unconstitutional in part because the 10th Amendment means that Congress never had authority to pass DOMA in the first place; the Department of Justice (DOJ) recently argued that the 10th Amendment does not interfere with Congressional authority to pass DOMA. If DOMA were the only law in existence, it really would not matter how or why it gets thrown out. But, DOMA is not only one of innumerable federal laws, it is one of many laws that matter to many members of the gay community, as well as our allies, friends and families.

I argue that Judge Tauro's 10th Amendment argument is a wolf in sheep's clothing, with potentially broad implications for wide swaths of the federal regulatory state. That might not be a bad thing! But, for those who believe in a large federal government with strong regulatory authority to address social ills, you may want to consider supporting the DOJ's 10th Amendment DOMA defense. In any event, Judge Tauro's 10th Amendment argument with respect to DOMA fails in its own right. If it is a wolf, it's a weak wolf who can't find any sheep.

To make this argument, I will highlight some 10th Amendment basics, go through Judge Tauro's original opinion, discuss the DOJ's response in its recent appellate brief and offer some analysis AFTER THE JUMP.

Tenth Amendment history suggests that, at a minimum, the clause is a tool wielded against federal regulatory authority.

Countless scholars spend their entire careers studying the history and breadth of the Tenth Amendment. Their debates are beyond the scope of this blog, but suffice it to say that the Tenth Amendment has gained a resurgence in case law and in the legal academy with the growth of conservative legal thought in the last half century.

Ever since the Progressive Era of the late Nineteenth century, the federal government has been growing, with its military and regulatory authority leading the way. Progressive reforms were followed by New Deal, Fair Deal and Great Society programs that brought the federal government into our lives in ways it had never been before. We can also thank conservatives like Presidents Nixon and George H.W. Bush for groundbreaking environmental legislation and civil rights laws that expanded federal authority. Those with libertarian tendencies have a visceral reaction to this expansion as bad. I make no normative value judgments here, though. The constitutional arguments against this (and further federal regulatory) expansion center, in part, on a strong 10th Amendment. Tea Partiers, for example, argue that the recent health care law is just the latest in a series of Congressional actions that lack a constitutional basis. They say that the 10th Amendment makes clear that Congress oversteps its authority every time it passes a law without a specific authorization in the Constitution, and the Constitution does not give Congress the power to force people to buy health care, regulate how we provide housing, require private businesses to run their shops in certain ways, permit unionization, force factories to stop polluting and so on and so on. (That is an oversimplification of the anti-health care reform constitutional argument, which mainly involves competing interpretations of the Commerce Clause.).

But, the 10th Amendment conflicts (or is limited by? or does it do the limiting? hmmm...) with clauses in Article I of the Constitution. The Spending Clause allows Congress to use tax money for the "general welfare." The Necessary and Proper Clause allows Congress to pays the laws it needs to in order to carry out its enumerated responsibilities. And, the Commerce Clause allows Congress to regulate interstate commerce.

The interplay among all these provisions are what people considerably smarter than I spend years on. For now, at least we can agree that these are the players in a tug of war about federal authority -- on the one hand are broad general welfare and necessary and proper doctrines; on the other hand is the 10th Amendment. A stronger 10th Amendment means a weaker federal government.

Judge Tauro uses the 10th Amendment to declare DOMA unconstitutional.

In Massachusetts v. HHS, Judge Tauro found DOMA unconstitutional as applied to Massachusetts because DOMA violates the 10th Amendment by infringing on the state's sovereign power to define lawful marriages. He spends significant time on the 10th Amendment, giving us one of the strongest pictures of that provision in American history. He tells us that marriage is distinctly and exclusively a state function, which would make it precisely the kind of power "reserved to the States" under the 10th Amendment.

But, his argument fails for two reasons. First, it is simply not true that marriage law is and always has been an exclusively state prerogative. Congress has been meddling in marriage since the Progressive Era. As Jack Balkin reminds us, "Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families." Second, Judge Tauro tacitly admits this by listing the myriad of ways in which DOMA discriminates against same-sex couples. By doing so, he is pulling at our heart strings and giving emotional weight to his conclusion, but he gives us the history of federal involvement in marriage law. If the 10th Amendment means that marriage law is exclusively the purview of the states, then Congress should not have been allowed to pass all these laws that deliver benefits based on marital status. Judge Tauro's logic would undermine Social Security, Medicare, Medicaid and a plethora of other benefits.

The DOJ is protecting federal authority by defending DOMA from a 10th Amendment attack.

Even though Judge Tauro's 10th Amendment argument is a bad one, one likely to be overturned on appeal, it is the DOJ's responsibility to protect the authority of the federal government it serves. Judge Tauro argues that DOMA interferes with state prerogatives to structure its family law as it sees fit. But, a host of other federal laws -- Social Security, Medicare, Medicaid, provisions of the tax code, Title VII (which regulates private businesses), the recently passed health care reform act and the basic statutory foundations of the modern state -- impact state prerogatives just as much as DOMA. Judge Tauro is opening the door for 10th Amendment challenges to all of them. And, even if you might not care as much about those other laws and even if you think DOMA is odious and needs to be erased and even if you think that one pro-10th Amendment case will not undermine the federal government, it is at least the federal government's responsibility to defend its prerogatives from any and all angles of attack. If the DOJ did not defend DOMA and allowed Judge Tauro's 10th Amendment argument to stand, it would be like knowing your house is infested with termites and doing nothing about it. It would be tantamount to President Obama telling his Republican opponents, "Sure, we should repeal health care reform because we didn't have the right to reform it in the first place." The DOJ could decline to defend DOMA (if it did so, DOMA would not become law because responsibility to defend it would simply shift... more on that in a future post!), but doing so would be falling asleep at the federal wheel.

Now, this might not be a bad thing. Your political views might prefer a smaller federal government and your view of history might condemn the current welfare state as an unlawful expansion of federal authority. I respect that view. But, we should at least recognize that it is in the federal government's interest, especially a federal government run by a president who earnestly believes in the ability of federal power to correct social ills, to defend its authority to correct those social ills.

The DOJ's 10th Amendment response is about federal power, not gay rights.

It just so happens that the medium for the DOJ's defense of the federal government's regulatory authority is a case about egregious anti-gay discrimination. You will see similar arguments about the Necessary and Proper Clause and the Spending Clause from the DOJ in state challenges to health care reform. I imagine liberals would applaud those arguments. Liberals should applaud the DOJ's 10th Amendment arguments in the DOMA cases, as well.

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  1. Liberals should applaud the DOJ's 10th Amendment arguments in the DOMA cases, as well.

    So why not post this on DailyKos, rather than a gay website? I get that the people who produce this site are liberals, and that they want to argue for liberal stuff, but you seem to go out of your way to consistently argue that gay people who read an ostensibly gay-themed webaite should consider the Democratic party's interests first and foremost.

    Also, you completely ignore the fact that Obama's justice department defends DOMA in cases NOT decided by Judge Tauro (Smelt v. U.S.). The reasoning you provide for the Justice Dept's actions is very convenient but they seem quite willing to defend DOMA no matter what.

    Posted by: Matt | Jan 26, 2011 2:12:22 PM

  2. To me, all those other "evils" as a result of the strengthening of the 10th amendment are worth it if it brings down DOMA.

    Why not let each state make its own decisions on these matters? If people in Texas or Oklahoma don't want the middle class to have affordable health care, that's their choice.

    Many states have made much more progress on gay rights than the federal government (think employment discrimination, marriage/DP/civil unions), so I'd rather give them the power.

    Posted by: Matt N | Jan 26, 2011 2:34:33 PM

  3. No, I'm not going to applaud the decision by the Dept of Justice to belie their name. Your argument - that justice for gay people will necessarily destroy the federal government - is unconvincing. With regard to the human rights of gay people the courts have NOT been logically consistent - and this is on a consistent basis. Courts applying laws that work for hets to gays in equal measure is still novel. Am I worried that the federal government will lose broad powers because the courts decide gay people should not be excluded from protection under the law? Am I worried Santa Claus will get stuck in my chimney because he's clearly too fat to fit?

    Posted by: Glenn I | Jan 26, 2011 2:49:45 PM

  4. Really? You're kidding right? All the programs you mention simply provide federal benefits based on the states' having lawfully married two people. I think you're making a mountain out of a molehill here. We're not asking for anything more than consistent application of the law here.

    I'm also sick and tired of having "learned" people explain why I should be happy that the full weight of the federal Department of Justice is being employed to keep me in second class status.

    Posted by: JM | Jan 26, 2011 2:59:10 PM

  5. Thanks for explaining to me how the federal government, including the Democrats, keep their boots on my neck. I'm still waiting for a "What We Must Do" article instead of this "here's what you can't do" crap. Why are there so many LGBT "scholars" who are willing to explain why we can't use this or that route to equality and so few real activists who can explain what we have to do? BECAUSE CONTINUED HOMOPHOBIA IS BIG BUSINESS AND AS LONG AS A FEW PEOPLE CAN EEK OUT A COMFORTABLE LIVING OFF HOMOPHOBIA, THEY HAVE AN INTEREST IN MAINTAINING IT, NOT IN ENDING IT.

    Posted by: Lnonie | Jan 26, 2011 3:12:26 PM

  6. I'm generally sympathetic to the Tenth Amendment, though perhaps the most interesting result of reviving its effect would be to determine the interchange between it and the Full Faith and Credit clause. Would Loving v. Virginia be reversed? Would the interstate recognition of drivers' licenses depend on compact rather than Federal jurisdiction?

    I'll stand with Judge Tauro: fiat justitia ruat coeli.

    Posted by: Rich | Jan 26, 2011 3:37:11 PM

  7. A victory achieved with a short sighted strategy will quickly prove to have been no victory at all. It seems fairly obvious to me that while other options, ones less damaging to progressive causes, are available we should explore these avenues.

    I believe that time and history are on our side and we have an obligation to make sure that we handle our struggle in a responsible fashion. The segment of society that most directly opposes our equality is aging while the idea of equality is secure from such threats.

    It may be somewhat cruel to say but in the end individuals aren't really that important. The fact that you or I want to get married to today, want tax benefits today, or want to have an easy answer to custody rights doesn't amount to more than a personal impatience for convenience. If we take the time to do this correctly then we will have made things better for ourselves, or at least those that come after us, without having dealt any lasting harm. I think thats worth waiting a few more years or even decades though I do not think it will take that long.

    Posted by: Kas | Jan 26, 2011 3:38:34 PM

  8. I'm with the 10th Amendment on this one. Government was given enumerated powers and only such powers. Given that centralize state power is almost always used against gay people, I don't see why any gay person would side with centralizing power in Washington. It is a bad idea and history shows that to be the case. You can try to dismiss the 10th Amendment, and the 9th as well, but they are important bulwarks against over-reaching government.

    Posted by: cls | Jan 26, 2011 3:52:44 PM

  9. I agree with Ari Ezra Waldman that a 10th Amendment based decision for overturning DOMA is a bad precedent. It should have been a 14th Amendment based decision. There is a whole class of people in Massachusetts, namely the gay married people of Massachusetts, and for DOMA to deny this particular class of people benefits violates equal protection (following Romer v. Evans).

    Posted by: Philo | Jan 26, 2011 4:26:11 PM

  10. 2 questions:

    1) are defining marriage and meddling in marriage as defined by states equally unconstitutional based on the 10th amendment?

    2) even if the 10th amendment argument is reversed on appeal, did judge tauro also not rule doma unconsitutional because of another argument (equal protection clause or due process clause - i'm not sure)?

    thanks in advance.

    Posted by: daftpunkydavid | Jan 26, 2011 4:48:38 PM

  11. @daftpunkydavid: indeed, he did. there were equal protection and due process arguments in there, as well. that was what our discussion of rational basis review was all about. i am more than happy to go back and discuss those further, though. basically, he argued that there was no basis to treat gay couples differently; the DOJ argued that it had loads of reasons, including scarce resources, maintaining the status quo, letting the states experiment, and all that jazz.

    Posted by: Ari Ezra Waldman | Jan 26, 2011 5:42:08 PM

  12. Despite what the 10th Amendment has been or might be used for, I'd prefer the Constitution be interpreted using the plain meaning of the English language (ya know, like how how maintaining a well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed ... that's a comma there, meaning it's all part of the same sentence.)

    So, no matter what the outcome, I'm tired of shenanigans being played with the plain and simple meaning of the U.S. Constitution. Fine if other clauses affect and diminish the scope of the 10th Amendment. But whatever powers remain to the states that other clauses in the Constitution do not reserve for Congress should (and god help all Texans) remain with the states.

    Not because I'm personally in favor of such a scheme, but because that's what the Constitution says. What a novel idea, huh, just reading it and following it?

    Posted by: Zlick | Jan 26, 2011 8:14:08 PM

  13. Thank you Ari for this (I almost wanna call you Casey Kasem!).

    I actually did read Balkin's argument and wanted to hear both your take on it and how people reacted to it.

    Posted by: Chitown Kev | Jan 27, 2011 11:02:49 AM

  14. Sorry, Ari. Tauro is right, and you are profoundly wrong. Marriage -- whether two people are married - has always been the exclusive province of the states. Whatever incentives the federal gov't may use in social engineering, it remains true that until DOMA, Congress did not address the issue of marriage. And although the SCOTUS did decide in Loving vs. Virginia that state laws against inter-racial marriage are unconstitutional, it did not disturb the states' right to decide non-suspect marriage qualifications within their borders.

    Posted by: wimsy | Jan 27, 2011 12:44:26 PM

  15. @wimsy: your view may hold the day in the end, but i do not think it is entirely accurate to say "Congress did not address the issue of marriage" before DOMA. maybe this is word choice issue, but any time Congress decided to hinge certain benefits on a legal marriage or give incentives to certain kinds of marriages, it is "addressing" marriage. the real question is whether so-called "addressing" marriage in that way is enough federal involvement to make marriage law a joint venture or, at a minimum, not the exclusive arena of the states. and, what does it mean to have powers reserved to the states? do states have to be the exclusive owners of all powers to win on a 10th amendment argument? or could the states' rights camp still win if there is de minimus federal involvement? its a tough call.

    Posted by: Ari | Jan 27, 2011 1:07:47 PM

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