I like the equal protection ruling better than the 10th amendment one. In fact, the 10th amendment ruling may hurt gay rights in the long run by allowing the most backward states to continue discriminating even once Congress comes to its senses.
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p>Unrelated but fun fact: Judge Tauro is the same guy who ruled that developmentally disabled individuals removed from institutions to community settings had to receive a level of care equal to or better than what they were getting in institutions. Apparently he’s good at getting himself the cases with far-reaching political impact.
Tauro is also the same judge who ruled in 1998 that the Massachusetts Burma Law was unconstitutional. (Modeled on similar laws for apartheid South Africa, the law barred the Massachusetts state government from buying goods and services from companies that did business with the Burmese military regime.)
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p>In that ruling he stated that the federal government’s foreign policy powers under the constitution included micro-managing the Commonwealth’s procurement policies.
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p>That’s quite a turnaround on the concept of state sovereignty.
kathy
2020 years ago
I’m sure the wingnuts will cry “judicial activism!”. They were OK with activist judges who decided the Bush v. Gore case, and with Citizens United, but when it comes to the civil rights of individuals, they’ll scream to the heavens.
centralmassdad
2020 years ago
The argument is that the federal government is intruding on the regulation of domestic relations– the domain of state government– by requiring the state to violate its own laws in order to receive certain federal funding. The state administers a veteran’s cemetery, and is funded in part by the federal government. The state administers MassHealth, with federal funds, and in each instance must exclude people that are spouses recognized under state law.
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p>Yes, I agree that the decision could be read to require the federal government to recognize state law when that law excludes SSM as well. But this was always the case, at least until there is a 14th Amendment ground to invalidate those state laws, like in Loving.
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p>This decision clarifies for me that the challenges to the individual mandate in the health care reform, made by states not individuals, probably has more to it than I previously thought. To the extent that a state can find a hook (like the cemetary or MassHealth) it seems that there is at least a colorable argument that the individual mandate is vulnerable on 10th Amendment grounds as well.
My understanding is that the individual mandate is affected by the interstate commerce part of the US Constitution because it involves insurance companies that do interstate business and as such, the 10th Amendment does not kick in because it is by definition, federal. This is the same thing with the Arizona Law, in that immigration is federal.
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p>Prior to DOMA, the federal government had never gotten involved in marriage and there are centuries of marriage laws at the state level, so the 10th amendment would definitely apply.
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p>Just because the state government and the federal government disagree on something, does not make it that it must all be up to the state, or all be up to the federal government. If it were, then we would have US driver’s licences instead of MA licences and lawyers would only need to pass the US Bar instead of 50 different Bars.
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p>My disappointment is that it slow down Marriage Equality in the remaining 45 states, by having to rely on the “State’s Rights” issue to defend equality.
I dont think it does much to slow down recognition in other states. State A is not, and has never been, required to recognize a marriage from State B if State A has a public policy reason for denying that recognition. So State A might permit marriage by first cousins, and State B, which prohibits that marriage, is under zero obligation to recognize it. DOMA Section 2 puts this into a statute, but Section 2 didn’t alter anything.
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p>The only reason that this would change is if State B’s denial is unconstitutional standing alone, because it is, say unconstitutional on equal protection grounds. The other Tauro opinion is therefore much more significant, in my view, because it has 50-state potential.
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p>With respect to health insurance, I don’t think it is anywhere near so easy to conclude that it is “by definition federal.” Insurance regulation has traditionally been a state function, which is why, if you move interstate, you probably need to change insurance carriers, and why you might presently deal with BCBS of MA, for example.
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p>I’m not saying that the individual mandate is likely to be invalidated. I’m just saying that, after reading this decision, the dismissal of these challenges is not as much of a slam dunk as I previously supposed.
I like the equal protection ruling better than the 10th amendment one. In fact, the 10th amendment ruling may hurt gay rights in the long run by allowing the most backward states to continue discriminating even once Congress comes to its senses.
<
p>Unrelated but fun fact: Judge Tauro is the same guy who ruled that developmentally disabled individuals removed from institutions to community settings had to receive a level of care equal to or better than what they were getting in institutions. Apparently he’s good at getting himself the cases with far-reaching political impact.
You think that’s why they ARE backward states?
Tauro is also the same judge who ruled in 1998 that the Massachusetts Burma Law was unconstitutional. (Modeled on similar laws for apartheid South Africa, the law barred the Massachusetts state government from buying goods and services from companies that did business with the Burmese military regime.)
<
p>In that ruling he stated that the federal government’s foreign policy powers under the constitution included micro-managing the Commonwealth’s procurement policies.
<
p>That’s quite a turnaround on the concept of state sovereignty.
I’m sure the wingnuts will cry “judicial activism!”. They were OK with activist judges who decided the Bush v. Gore case, and with Citizens United, but when it comes to the civil rights of individuals, they’ll scream to the heavens.
The argument is that the federal government is intruding on the regulation of domestic relations– the domain of state government– by requiring the state to violate its own laws in order to receive certain federal funding. The state administers a veteran’s cemetery, and is funded in part by the federal government. The state administers MassHealth, with federal funds, and in each instance must exclude people that are spouses recognized under state law.
<
p>Yes, I agree that the decision could be read to require the federal government to recognize state law when that law excludes SSM as well. But this was always the case, at least until there is a 14th Amendment ground to invalidate those state laws, like in Loving.
<
p>This decision clarifies for me that the challenges to the individual mandate in the health care reform, made by states not individuals, probably has more to it than I previously thought. To the extent that a state can find a hook (like the cemetary or MassHealth) it seems that there is at least a colorable argument that the individual mandate is vulnerable on 10th Amendment grounds as well.
My understanding is that the individual mandate is affected by the interstate commerce part of the US Constitution because it involves insurance companies that do interstate business and as such, the 10th Amendment does not kick in because it is by definition, federal. This is the same thing with the Arizona Law, in that immigration is federal.
<
p>Prior to DOMA, the federal government had never gotten involved in marriage and there are centuries of marriage laws at the state level, so the 10th amendment would definitely apply.
<
p>Just because the state government and the federal government disagree on something, does not make it that it must all be up to the state, or all be up to the federal government. If it were, then we would have US driver’s licences instead of MA licences and lawyers would only need to pass the US Bar instead of 50 different Bars.
<
p>My disappointment is that it slow down Marriage Equality in the remaining 45 states, by having to rely on the “State’s Rights” issue to defend equality.
I dont think it does much to slow down recognition in other states. State A is not, and has never been, required to recognize a marriage from State B if State A has a public policy reason for denying that recognition. So State A might permit marriage by first cousins, and State B, which prohibits that marriage, is under zero obligation to recognize it. DOMA Section 2 puts this into a statute, but Section 2 didn’t alter anything.
<
p>The only reason that this would change is if State B’s denial is unconstitutional standing alone, because it is, say unconstitutional on equal protection grounds. The other Tauro opinion is therefore much more significant, in my view, because it has 50-state potential.
<
p>With respect to health insurance, I don’t think it is anywhere near so easy to conclude that it is “by definition federal.” Insurance regulation has traditionally been a state function, which is why, if you move interstate, you probably need to change insurance carriers, and why you might presently deal with BCBS of MA, for example.
<
p>I’m not saying that the individual mandate is likely to be invalidated. I’m just saying that, after reading this decision, the dismissal of these challenges is not as much of a slam dunk as I previously supposed.