Friday, July 09, 2010

Abortion, Gay "Marriage" and the 10th Amendment

Well, now.

A federal district court judge in Boston today struck down the 1996 federal law that defines marriage as a union exclusively between a man and a woman.

Judge Joseph L. Tauro ruled that the federal Defense of Marriage law violates the Constitutional right of married same-sex couples to equal protection under the law and upends the federal government’s long history of allowing states to set their own marriage laws.

Gee. The 10th Amendment prevails!!

Unless, of course, your State did not allow abortions pre-Roe. Or homosex sodomy.

Because, it's clear, the Constitution emanates and penumbrates a "right to privacy." Or "Gun Control" (although in this case, the LeftOWackies were caught between the 2nd + 14th and their sudden interest in the 10th.)

So: which 10th Amendment is operative?


Dave said...

Had this been a federal law forcing other states to recognize same-sex marriage couples, do you think the judge would have struck down the law on the same grounds?

The answer is no. This is not about state's rights. This is legal positivism. This is about a means to an end, using whatever rationale is convenient - never mind the inconsistencies.

Dad29 said...

While I'm inclined to agree with you, we don't KNOW that.

But we DO know that the 10thA is selectively enforced, no?

TerryN said...

"It's a living breathing document..."


Anonymous said...

It IS a "living, breathing document..."

According to the right-wing majority that recently decided that a corporation is a person just like you and me and is therefore entitled to purchase a right-wing politician!


Anonymous said...

The federal government has generally followed state definitions of marriage in handing out federal benefits, and it has never tracked state changes in marriage laws. It simply has asked whether a couple is married under relevant state law. For example, even when the issue of interracial marriage was hotly contested, and only some states permitted it, the federal government recognized those marriages as eligible for federal benefits. Additionally, states have different ages at which people can be married; for example, New Hampshire allows a 13 year old female and a fourteen year old male to get married with their parents consent, and no other state does. Also some states have different rules for how close a relation a person can marry (first cousins, second cousins, etc.) The fact that some states might object morally to the rules in other states has not prevented the federal government from recognizing these marriages. In this case, however, the federal government is singling out one set of marriages-- same-sex marriages-- and refusing to follow whatever definitions a state adopts for purposes of awarding federal benefits. This variance from customary practice, and the reason it violates the 10th amendment, shows that the federal government has no rational justification for DOMA.

Dad29 said...

Well, yes!

Of course, the ruling will be overturned at the appeals level (perhaps SCOTUS...)

But if the judge's reasoning on the 10A holds, then Medicare, Medicaid, ObamaCare, and abortion are all in play.


Dave said...

Anonymous: You might also remember that the feds have stepped in on the definition of marriage before: US vs. Reynolds. There is precedent.

And like I said before: this is almost certainly a case of the end justifying the means. Had the law said the opposite, I think the judge would have upheld it on some other grounds.