Kirk Johnson has a piece in Saturday’s New York Times that hints at divisions among conservative groups as to whether to support Judge Joseph L. Tauro’s ruling last Thursday that a Massachusetts state law allowing same-sex marriage should take precedence over the federal Defense of Marriage Act (DOMA):
The decision … supports and echoes a central tenet of the Tea Party, 9/12 and Tenth Amendment movements, all of which argue that the authority of the states should trump Washington in most matters not explicitly assigned by the Constitution to the federal government. [...]
[I]n using the argument to support gay marriage in Massachusetts, where the case arose, the judge created an awkward new debating point within the less-government movement about where social goals and government policy intersect, or perhaps collide.
To make his point, however, he quotes Michael Boldin, founder of the Tenth Amendment Center, who is totally gung ho about the ruling, then goes on to quote Steve V. Moon, founder of States-rights.org, who is lukewarm: He supports the part of the ruling that relies upon a very broad interpretation of the Tenth Amendment and states’ rights but is worried about the implications of the part that relies upon the equal protection component of the Fifth Amendment. In truth, there hasn’t been much dissent among the states’ rights movement in applauding the logic of the ruling — just a trace of cognitive dissonance regarding its outcome.
Liberals, on the other hand, are the ones who seem to be more confused on the matter. Giddy about the victory for gay marriage, they seem unaware, argues Yale law professor Jack Balkin, about the dangerous implications of Tauro’s ruling:
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. [...]
Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.