Bench Memos

Taranto Nods

“The Tenth Amendment, which protects states’ rights, is the strongest argument against Section 3 of the 1996 Defense of Marriage Act,” writes the usually insightful James Taranto of the Wall Street Journal. Quoting with approval a confused passage from Chief Judge Dennis Jacobs’s bad botching of DOMA, Taranto asks why New York doesn’t have “the right to define marriage as it sees fit.”

The short answer is that, contrary to Taranto’s misunderstanding, under DOMA New York retains “the right to define marriage as it sees fit.” Even Jacobs acknowledges as much, as he quotes with approval the district judge’s recognition that under DOMA “the decision of whether same-sex couples can marry is left to the states.” (Slip opinion, p. 41.)

The Tenth Amendment simply has nothing to do with the power of the federal government to define what marriage means for purposes of provisions of federal law. (For more on this elementary point about federalism, see my point 2 here.)

(On the other hand, Taranto is in good form in explaining how Judge Reinhardt’s decision against Prop 8 isn’t faithful to Romer v. Evans, the Supreme Court ruling it purports to follow.)

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