JURIST Guest Columnist Bruce Miller of Western New England College School of Law says that the decision of a moderately liberal federal judge that the application of the Defense of Marriage Act in Massachusetts is unconstitutional on federalism grounds is unsurprising…

On July 8, Judge Joseph Tauro of the U. S. District Court in Boston held the federal Defense of Marriage Act (DOMA), which defines marriage for purposes of federal law as the union of one man and one woman, to be beyond Congress’ constitutional authority. If it stands, his ruling will make Massachusetts same sex couples eligible for many federal programs, including Medicare, Medicaid and veterans’ benefits. In invalidating DOMA, Judge Tauro did no more than follow a constitutional rule established by the Supreme Court under the direction of the late Chief Justice William Rehnquist. A decade ago, Rehnquist confidently posited that the “Constitution requires a distinction between what is truly national and what is truly local.” To Rehnquist, a conservative Republican, this strict, categorical division of constitutional authority was a necessary consequence of the framers’ novel decision to permit two sovereigns, state and federal, simultaneously to exercise governmental power in the same geographical space. Under Rehnquist’s stewardship, the Supreme Court famously relied on this presumed inherent separation of the national from the local to retake responsibility, long ceded to Congress, for determining the present meaning of the framers’ ingenious invention. For the first time in two generations, federalism was to be enforced from the bench.

Thus, in U.S. v. Morrison, the case which prompted Rehnquist’s declaration, a five to four majority of the Court held that the provision of judicial remedies to victims of gender based violence was an exclusively local responsibility, and therefore beyond Congress’ power, notwithstanding the roots of such violence in the historical subordination of women, a core concern of the Fourteenth Amendment. Five years earlier, the Rehnquist Court had similarly stricken a federal ban on gun possession in schools on the ground that firearm regulation, too, was inherently a matter for state control and thus beyond Congress’ authority to regulate matters affecting interstate commerce. The same five to four majority was unmoved by the impact of gun based violence on teaching and learning, and thus on the economic prospects of our nation’s students. Their aim of promoting a strong, unified national economy is, of course, the central reason why the framers gave Congress the Interstate Commerce power.

But three years after Morrison, the Court switched sides, finding that Congress’ criminalization of the private medical use of marijuana with a physician’s authorization properly addressed a truly national problem (eradicating the national drug trade), notwithstanding California’s decision to authorize such use by state residents. The line between the national and the local, however obligatory, seemed hard to draw in principle, and quite hazy in practice. Moreover, a closely divided Supreme Court’s allocation of federal legislative measures to either side of the line seemed to reflect little more than the preferences of conservative culture war partisans. While controlling firearms and providing remedies for gender based violence, important causes for Congressional liberals and Democrats, were deemed not matters of national concern, stopping private marijuana use, a policy favored much more by Republicans and conservatives, plainly was.

Against this background, the decision of a moderately liberal federal judge that the application of DOMA in Massachusetts is unconstitutional on federalism grounds is unsurprising. As Judge Tauro observed, relying on Rehnquist’s Morrison opinion, “family law, including declarations of status, e.g. marriage, annulment, divorce, custody and paternity is often held out as the archetypal area of local concern” (emphasis by Judge Tauro). And until the 1996 enactment of DOMA, which had no purpose save for thwarting the effectiveness of (then foreseeable) state recognition of same sex marriage, Congress had never adopted a definition of marriage as a matter of federal law. The unprecedented DOMA foray into family law required Massachusetts either to foreswear its recognition of same marriages or surrender its own and its citizens’ eligibility for those federal Medicare, Medicaid and veterans’ benefits made available by DOMA only to separate sex married couples. Judge Tauro found this choice to be an unconstitutional Catch 22, encroaching on the core sovereign right of Massachusetts to adopt and enforce its own definition of marriage.

To be sure, Judge Tauro’s rejection of a key argument offered by the Obama Administration in defense of DOMA – that Congress may properly condition a state’s eligibility for federal financial support on its willingness to surrender the right to define marriage as it sees fit – raises important and even novel Constitutional questions. But in recognizing that right as an attribute of state sovereignty, Judge Tauro was doing no more than following Chief Justice Rehnquist’s admonition to distinguish the truly national from the truly local. And in light of Rehnquist’s Court’s conclusion that gender based violence, frequently, perhaps paradigmatically, a family based injustice, falls on the local side of the divide, it is hard to imagine any judge, save for one highly predisposed to reach politically conservative results, failing to place a state’s recognition of same sex marriage there, too, even if it means reaching a result that supports a liberal cause.

Bruce Miller is Professor of Law at Western New England College School of Law.

Suggested citation: Bruce Miller, Left Wing Federalism Fells DOMA, JURIST – Forum, July 21, 2010, http://jurist.org/forum/2010/07/left-wing-federalism-fells-doma.php.