Let’s pretend this decision is upheld on appeal all the way up to the Supreme Court. Doesn’t that then forclose the other objection to DOMA; that a state can’t refuse to marry gays because that would violate equal protection and/or due process?
no, the main thrust of his opinion is that DOMA fails even rational basis scrutiny of the equal protection clause of the 14th amendment.
this is probably how it will all shake out: his 10th amendment and spending clause jurisprudence will be overturned on circuit appeal, and his equal protection analysis will be combined with the Perry case in California upon presentation to the supreme court. At that point, it’s a real head scratcher how SCOTUS will sort it out - whether gay marraige is deserving of intermediate/strict scrutiny review, or if it’s a rational basis-type category. No one knows! But I don’t have much hope that this judge’s opinion that gay marriage fails under even rational basis would stand, though. So it’s all back to how you categorize same-sex marriage for the purposes of EP review.
I’m wondering if the application of the tenth amendment on this issue means that we will never be able to have a federal law ensuring gay marriage in every state. It will have to be either by Supreme Court decision or state-by-state, right?
There was never going to be a federal law ensuring gay marriage in every state.
No. There appear to be two separate opinions.
(1) Feds can’t force states to define marriage any particular way by statute, because that’s a Tenth Amendment violation; states get to decide what marriage means.
(2) EP clause in federal constitution forces states to define marriage to include same-sex partners.
So we can imagine four possible outcomes:
(1) and (2) both upheld;
(1) upheld and (2) overturned;
(1) overturned and (2) upheld;
(1) and (2) both overturned.
Perhaps you are missing something. If I have read the decision correctly, the equal protection claim was predicated upon the 5th Amendment’s due process clause. The U.S. Supreme Court, in a fantastic stroke of judicial activism, held the due process clause of the 5th Amendment contains an equal protection component. Bolling v. Sharpe, 347 U.S. 497, 499 (1954). Essentially, the ruling holds the federal government has chosen to condition the spending of its money on a qualification which unconstitutionally violates notions of equal protection in the 5th Amendment. So it is not correct to characterize this decision as an instance of subjugating federal spending power to a “State’s whim.”
I agree with this analysis.
And I think that if you put same-sex marriage under intermediate scrutiny, no ban against it can survive.
If it’s analyzed under rational basis, bans can be sustained.
I think you probably missed the immediately following post. 
to elaborate: at the time i wrote that post, i hadn’t even read the opinion. i was just musing on how the spending clause analysis would proceed, and why it didn’t make sense to me (short of there being an EP violation). Then I read the opinion (and a post or two above which summarized that opinion for me) and discovered that it was based on EP.
Oohhhh! Dropping the L-bomb! All you need is one more trope for the hat trick!
Yes, there are a lot of yahoos out there who would flit about changing their interpretation of the Constitution with every whim. Lots of yahoos who think “living Constitution” equates to infinite malleability. Bozos galore who think that their personal sense of justice, limits/reach of government power, and inherent Americanness should be found somewhere within the Constitution and dammit, they’re going to find it! Those folks are way out on the pipe.
Textualists (and Originalists) are their mirror image, and just as absurd. Except somehow you’ve been sold a bill of goods from Fox news that says it’s okay to be an activist judge as long as your rulings are in line with the Republican platform and you chant “textualist!” and “black ink!” loud enough.
…
Question: do any of the filings/briefs/opinions address Full Faith and Credit and whether or not recognition of homosexuals as a protected class would affect it?
Aren’t 1 and 2 contradictory? (1) says that its up to the states, not the fed, as to who gets married, and (2) says that the states can’t stop gays from marrying.
that’s pretty much what his opinion in HHS said, though.
Crap I did. My apologies.
No…the first statement is declaring this is a power reserved to the states, and only to the states, and the second statement says this exclusive state power is limited, and one of the limitations is the states cannot preclude gays from marrying. There is no contradiction between the two statements.
Bricker, since you brought up the whole “penumbra” thing, I have to ask: Doesn’t the Ninth Amendment rather require us to look for penumbras, at least in so far as they contain rights? The position that rights in the “penumbras” have no Constitutional validity looks to me like precisely the interpretation that the Ninth Amendment was written to squash.
And while we’re at it, what about the “public policy exception” to the Full Faith and Credit clause that conservatives like to talk about so much? That’s not anywhere in the plain black ink. By what theory of Constitutional interpretation is that one valid, but the liberal penumbras are not?
And therefore striking down Loving v. Virginia?
I certainly welcome arguments based on the Tenth Amendment. I can think of several others that will need to be revisited if this argument prevails.
Sure. And the Tenth Amendment tells you where to look for penumbrae.
Regards,
Shodan
Does it?
The Tenth Amendment refers to **the powers **of the Federal government:
The Ninth refers to the rights of the people:
How are you drawing a connection between the two? That they are two separate Amendments is further suggestive that one does not wholly include the other.
They are connected in that
[ul][li]The Ninth makes it clear that the rights enumerated in the Constitution are not the only possible rights, and [/li][li]The Tenth makes it clear who has the power to define those rights - the states, or the people. [/ul]The power to define marriage (according to this decision) lies, not with the feds, but with the states. Because no where in the Constitution does it say that the feds get the power to enumerate rights. OK, fine - no where in the Constitution does it say that the feds have the power to define a right to privacy either. The Supreme Court found that rhe power to define that right did not lay with the states or the people - it gave that power to itself. [/li]
In direct violation of the Tenth Amendment.
Regards,
Shodan
Where does it say the Feds get the power to enumerate rights?
Missed edit:
Note, you can certainly argue that the two Amendments are linked like that (and that’s a different, likely rich, thread). But doing so undercuts the claims that your interpretation is correct because it’s based on the plain text of the Constitution, and the claim that it’s possible to rely solely on the text to conduct Constitutional analysis. You can certainly start there, you can certainly draw a lot from it, but unless you want to imagine a steampunk-inspired world where Marbury never existed you cannot escape making more generalized interpretations and arguments.
(By the way, just because I find textualists a silly lot doesn’t mean I’m advocating the total opposite.)
Is that a quote?
I feel like I recognise it from somewhere…