SCOTUSblog’s Tom Goldstein says a same-sex-marriage victory in DOMA almost precludes a same-sex-marriage victory in the Prop 8 case. I disagree.

Students of Windsor and Hollingsworth have always recognized a basic tension between the theories of gay-rights advocates in the cases.  The challenge to DOMA is undergirded by a sense that marriage is a matter for state rather than federal regulation.  The challenge to Proposition 8 is a direct challenge to just such a decision by a state.

Yesterday and today, the irresolvable depth of that tension in this Court became obvious. The arguments would be easier for the public to understand if they had occurred in reverse.

The arguments would be easier for the public to understand if they had occurred in reverse? Maybe.  But I think I understand them well enough to disagree the depth of that tension in this Court is irresolvable.  I say that, even recognizing that the operate words in Goldstein’s statement are “in this Court.”  By which he means, this Court with it’s membership.

Goldstein explains:

A majority of the Court seems poised in Windsor to invalidate DOMA Section 3 on the theory that the federal government has no interest in adopting a definition of marriage applicable to 1100 statutory provisions that as a practical matter alters the very nature of what it is to be “married.”  That role, the Court will rule, is historically reserved to the states.  So DOMA is a federalism [i.e., states’-rights] case. …

But if DOMA is going to be decided as a federalism case, Hollingsworth [the California Prop. 8 case] becomes a much harder case for the plaintiffs [who are challenging Prop. 8 as violative of individual rights].  That ruling in Windsor implies that California should have a parallel right to decide the definition of marriage for itself – i.e., that Proposition 8 should be upheld.

Except that that ruling in Windsor would imply that California should have a parallel right to decide the definition of marriage for itself under the Tenth Amendment, which is the main states’ rights provision of the Constitution.  Such a ruling in Windsor would say nothing at all about the Fourteenth Amendment, which is the main individual-rights provision of the Constitution vis-a-vis the states.

The Tenth Amendment does not trump or negate the Fourteenth Amendment–although I acknowledge that Kennedy and other uber-states’-rights proponents do claim sometimes that it does.  Kennedy does this, regularly, in state-prosecution criminal cases and in other lawsuits in state court when he effectively says that the Supremacy Clause exempts state judicial branches from its mandate.  But he (unlike, say, Clarence Thomas) does recognize the application of the Supremacy Clause to state legislative and executive branches.  And, presumably, to state voter referendums.  Such as Prop. 8.

I think Goldstein improperly conflates the Tenth Amendment and the Fourteenth Amendment in these cases.  The DOMA case is a Tenth Amendment case.  The Prop. 8 case is a Fourteenth Amendment case.  Just as with state criminal laws, a state law may violate the Fourteenth Amendment’s due process or equal protection guarantees to individuals, even if under the Tenth Amendment the state is entitled to enact laws within a generic genre–criminal law, family law, marriage law, for example.  The Fourteenth Amendment prohibits states from enacting laws that, although they are within those generic genres, nonetheless violate individuals’ rights conferred by the Fourteenth Amendment or some other part of the Constitution that establishes individuals’ rights.  

Kennedy does understand that. It was the basis for his opinion in Lawrence v. Texas, the state-criminal-sodomy-statute case in 2003.

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