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Parts of the Defense of Marriage Act Unconstitutional

July 9, 2010

In my opinion any one who thought it would survive the full faith and credit challenges was delusional but finally 12 years later it falls and not on full faith and credit grounds but on equal protection grounds also on 10th amendment grounds –

In the case brought by Attorney General Martha Coakley, Judge Tauro found that the 1996 law, known as the Defense of Marriage Act, or DOMA, compels Massachusetts to discriminate against its own citizens in order to receive federal money for certain programs.

The other case, brought by Gay and Lesbian Advocates and Defenders, focused more narrowly on equal protection as applied to a handful of federal benefits. In that case, Judge Tauro agreed that the federal law violated the equal protection clause of the Constitution by denying benefits to one class of married couples — gay men and lesbians — but not others.


Professor Jack Balkin at Balkinization believes the rulings will be overturned –

his Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.


The arguments of Judge Tauro’s two opinions are at war with each other. He wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. 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. Indeed, social conservatives have often argued for using the federal government’s taxing and spending powers to create certain types of incentives for family formation and to benefit certain types of family structures; so too have liberals.

In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?


Maybe small government conservatives will support this ruling on the basis that it will eliminate a number of social programs. Seriously though, Professor Balkin is making the same point that I was making regarding California. The public isn’t ready for gay marriage and they will fight it tooth and nail; however they will accept fully equivalent civil unions so insisting on calling it marriage is counterproductive. Once civil unions are in place then you use the full faith and credit provisions of the Constitution to expand the sphere of rights.



Am I looking at this chart wrong? Arthur Laffer posted it in his response to Nancy Pelosi’s comments that increased unemployment benefits decrease unemployment –

As the chart nearby clearly shows, since the 1970s there’s been a close correlation between increased unemployment benefits and an increase in the unemployment rate. Those who argue that things are different today don’t have the data to back up their claims.

To me it looks as if the change in benefits consistently lags the change in employment. In other words higher benefits don’t lead to higher unemployment higher unemployment leads to higher benefits. Of course being the government nothing ever returns all the way to the starting point. Laffer does have a couple other good points however –

The Democratic argument also ignores the impact of unemployment benefits on employer costs. Employers don’t usually hire people to assuage their consciences. They hire people to make after-tax profits. And if workers require more pay because of higher unemployment benefits, employers will hire fewer employees.

Whether increased unemployment benefits incentivize workers to work less or disincentivize employers from hiring more workers, the effect will be the same—higher unemployment.


The flaw in their logic is that when it comes to higher unemployment benefits or any other stimulus spending, the resources given to the unemployed have to be taken from someone else. There isn’t a “tooth fairy,” or as my former colleague Milton Friedman repeated time and again, “there ain’t no such thing as a free lunch.” The government doesn’t create resources. It redistributes them. For everyone who is given something there is someone who has that something taken away.

While the unemployed may spend more as a result of higher unemployment benefits, those people from whom the resources are taken will spend less. In an economy, the income effects from a transfer payment always sum to zero. Quite simply, there is no stimulus from higher unemployment benefits.

Obama taking huge political risk challenging Arizona immigration law – The author actually gets it right in two ways; first, this law is very popular with the American people, and second, the media is distorting the issue –

Since SB1070 was first signed into law in April, leading papers like The New York Times have written stories that flip the issue on its head, with headlines like “Arizona Law Reveals Split Within GOP” and “Will Arizona’s Immigration Law Survive?” (According to the Post poll, nearly 80 percent of Republicans support the law. Some split.) The Associated Press has reported the law will actually increase crime, and the Los Angeles Times and most other big papers have focused on the boycotts and protests. Not many have written stories like “New Law Proves Popular With Constituents” or “Governor Reflects Will of People.”

Why the disconnect? After reading stories on the issue for weeks, much of the coverage I’ve seen has been tilted against the law. The reason is probably that the media is made up of mostly left-leaning types who favor unfettered immigration, but then I also tend to read papers and magazines that exist in the East Coast liberal-media echo chamber. There also seemed to be scant coverage of the fact that Arizona officials removed the word “solely” from language that said the police could not “solely consider race …” as a factor when determining reasonable suspicion that someone was an illegal, so ethnic origin or race cannot be used. “Lawful contact” with police officers was also changed to “stop, detain or arrest,” further lessening the chances of racial profiling.

Nice to see someone admit that. What the author seems to ignore is that although this law is very popular with the American public in general it is extremely unpopular with the Democratic party base, and that is who this lawsuit is aimed at. If it was really about preserving federal primacy in immigration the the feds would be going after Rhode Island, as well as sanctuary cities such as Seattle and San Francisco.

NPR Shouldn’t Exist But I’m Glad It Does – I have to agree. NPR opinion programming is decidedly liberal, but I just filter that out, it’s news programming however is outstanding as they are one of the few places to go beyond the 5 second sound bite when covering an issue.

4 Comments leave one →
  1. July 9, 2010 3:54 pm

    Very true about NPR: everyone else figures all you need is a five-minute newscast interrupted by two commercials.

    And I won’t miss DOMA; it doesn’t affect me, generally, but I was railing against it when it was passed and it hasn’t improved any.

  2. Portlandic permalink
    July 9, 2010 8:43 pm

    The DOMA decision, sadly, has the force of law only in the Eastern District of Massachusetts. Dollars to donuts, it will be appealed to the First Circuit (also in Boston), thence to the Supremes. Sigh.

  3. John David Galt permalink
    July 18, 2010 8:38 pm

    Not to rain on your parade, but the Laffer graph you put in clearly shows that rises in unemployment payments (or more often, extensions of the length of time they’re paid) happen *after* each increase in unemployment, not before, so they can’t have caused it.

    This is the same mistake Mann made with his hockey stick chart. Increases in CO2 happen *after* each increase in temperature, too.

    • jenn1964 permalink*
      July 19, 2010 11:59 am

      That’s what I said (Benefits are increased or lengthened in response to the rise in unemployment). Laffer is arguing that the changes in benefits occur before the changes in the unemployment rates.

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