In the Summer of 2010, U.S. federal court judges - in two different states - reversed key marriage control laws. On July 8, a judge in Massachusetts overturned the federal "Defense of Marriage Act" (DOMA, 1996) with two separate cases – determining one as a violation of the Fifth Amendment of the U.S. Constitution and the other as a violation of the Tenth Amendment. On August 4, a judge in California overturned "Proposition 8," its State Constitution's marriage control amendment (passed in 2008), as a violation of the Fourteenth Amendment of the U.S. Constitution. Overturning government-imposed "one-man/one-woman" marriage control with the three separate challenges of the Fifth, Tenth, and Fourteenth Amendments respectively, the decisions in both States then proceeded toward ultimately being brought before the U.S. Supreme Court.
MASSACHUSETTS – 5th & 10th AMENDMENT CHALLENGES
In Massachusetts, U.S. District Judge Joseph L. Tauro overturned the federal DOMA law, for being in conflict with Massachusetts' own re-definitions of government marriage. Namely, in the "Goodridge" case of 2003, the Supreme Judicial Court of Massachusetts had decided that the Massachusetts State Constitution prohibited the exclusion of same sex marriage; and subsequently, by May of that next year, same sex marriages were being recognized in that State. The federal "Defense Of Marriage Act" (DOMA) - federally mandating the one-man/one-woman re-definition of marriage - created direct legal conflicts for citizens with state-recognized same sex marriages in Massachusetts.
After a number of years of such state-recognized same sex marriages in Massachusetts, Judge Tauro, on July 8, 2010, decided two related cases. With both cases, his decision overturned DOMA – one for violating the Fifth Amendment and the other for violating the Tenth Amendment of the U.S. Constitution.
In Gill v. Office of Personnel Management, Judge Tauro reversed DOMA for being "in violation of the equal protection principles embodied in the Due Process Clause of the Fifth Amendment," as stated on Page 2 of his decision. The text of that amendment's specific clause declares that no person shall "be deprived of life, liberty, or property, without due process of law." Judge Tauro had detailed his distinction about "equal protection" being "in" the Fifth Amendment in a footnote, declaring, "Though the Fifth Amendment to the United States Constitution does not contain an Equal Protection Clause, as the Fourteenth Amendment does, the Fifth Amendment's Due Process Clause includes an Equal Protection component. See Bolling v. Sharpe." On Page 34 of Judge Tauro's decision, he declared, "Decidedly, DOMA does not provide for nationwide consistency in the distribution of federal benefits among married couples. Rather it denies to same-sex married couples the federal marriage-based benefits that similarly situated heterosexual couples enjoy." With a footnote on Page 38 that referenced the Romer v. Evans (1996) Supreme Court precedent, which prohibits laws that involve an impermissible targeting of any class of individuals, Judge Tauro explained that DOMA created one classification (one-man/one-woman) thereby excluding other classifications (such as same sex marriage). Stating that DOMA violated the Due Process Clause of the Fifth Amendment of the U.S. Constitution, Judge Tauro explained on Page 38 of his decision, "Congress undertook this classification for the one purpose that lies entirely outside of legislative bounds, to disadvantage a group of which it disapproves. And such a classification, the Constitution clearly will not permit."
In Massachusetts v. United States Health and Human Services, Judge Tauro additionally reversed the same federal law because "DOMA violates the Tenth Amendment of the Constitution," as he stated on Pages 1-2 of his decision. On Page 22, he declared, "It is a fundamental principle underlying our federalist system of government that '[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.' And, correspondingly, the Tenth Amendment provides that '[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'"
This use of the Tenth Amendment as a court precedent was quite a surprise to many activists on all sides of the debate. In the marriage control debate, the Tenth Amendment position has long been the standard position presented mostly by polygamy rights activists, reminding marriage control conservatives that conservatives usually otherwise say they support the Tenth Amendment principles too. Indeed, typically, it is political conservatives – not liberal same sex marriage supporters - who usually assert a Tenth Amendment argument against federal government intrusion. As an example, after President Obama's federal health care law was passed in 2010, conservatives decried it as extreme liberalism – even actual socialism. As the federal law mandated that every citizen must purchase health insurance, conservatives argued that that federal mandate violated the Tenth Amendment of the U.S. Constitution. On August 3, 2010, the Missouri Legislature agreed with that argument made by conservatives, passing "Proposition C" to block the federal mandate on its citizens as unconstitutional because of the Tenth Amendment. So, when Judge Tauro had used the same Tenth Amendment basis in deciding the same sex marriage case of Massachusetts v. United States Health and Human Services previously on July 8, 2010, activists on both sides of the marriage control debate were quite surprised indeed.
But Judge Tauro's two decisions in Massachusetts were not the only ones to be eventually headed to the Supreme Court in the Summer of 2010. Just a few short weeks after Tauro's decision, a federal judge in another State handed down a third decision additionally overturning one-man/one-woman marriage control.
CALIFORNIA – 14th AMENDMENT CHALLENGE
In California, on August 4, 2010, U.S. District Chief Judge, Vaughn R. Walker, overturned "Proposition 8" (Prop. 8) for being in conflict with the Fourteenth Amendment to the U.S. Constitution. Prop. 8 was a marriage control amendment to California's State Constitution that was passed by referendum in 2008 with a 52% majoritarian collectivism. The complete text of Proposition 8 declared, "Only marriage between a man and a woman is valid or recognized in California." In the case called, Perry v. Schwarzenegger, Judge Walker determined that both the "Due Process" and the "Equal Protection" clauses of the Fourteenth Amendment to the US Constitution made Prop. 8 unconstitutional - regardless of any majority vote.
"The Due Process Clause provides that no 'State [shall] deprive any person of life, liberty, or property, without due process of law,'" clarified Judge Walker about the Fourteenth Amendment, on Page 5 of his decision in Perry v. Schwarzenegger. In explaining marriage as a fundamental right, a subtitle on Page 116 stated, "Proposition 8 is unconstitutional because it denies a fundamental right without a legitimate (much less compelling) reason." Concluding that same subsection on page 117, Walker thereby determined, "Proposition 8 violates the Due Process Clause of the Fourteenth Amendment."
"The Equal Protection Clause of the Fourteenth Amendment provides that no state shall 'deny to any person within its jurisdiction the equal protection of the laws,'" clarified Judge Walker on Page 118 of his decision in the case. On Page 132, he declared, "The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal." Judge Walker immediately thereby determined in his very next sentence, "Proposition 8 violates the Equal Protection Clause because it does not treat them equally."
Bringing the two clauses of "Due Process" and of "Equal Protection" of the Fourteenth Amendment together, Judge Walker declared on Page 109, "Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation." In his decision's Conclusion, Judge Walker decided, "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional."
With his decision in Perry v. Schwarzenegger, Judge Walker delineated the right of the Individuals to marry as being a "fundamental right." That places such a right of the Individual above federal and state government, even above any majoritarian collectivism in popular vote. Consequently, explaining that majoritarian collectivists have no authority to vote for any over-ride of a fundamental right of the Individuals, Walker stated on Page 116, "That the majority of California voters supported Proposition 8 is irrelevant, as 'fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections.'"
THE THREE CHALLENGES HEAD TO THE SUPREME COURT
All three cases are on track to eventually be brought before the U.S. Supreme Court. Each case brings a separate Constitutional Amendment challenge, as per the decisions of the two respective Judges. The Fifth Amendment challenge reverses the marriage control of DOMA because that federal law intentionally does not provide a consistent and equal application of federal benefits to all. The Tenth Amendment challenge reverses the marriage control of DOMA because the federal government is constitutionally prohibited from being involved in marriage. The Fourteenth Amendment challenge reverses the marriage control of California's Proposition 8 – even being down at the State level - because marriage is a fundamental right of the Individual to which government must treat with equal protection, without targeting any classification, and without regard to what any majority-vote decides.
Liberal activists in the government marriage debate otherwise typically tend to be supportive of the "Due Process" and "Equal Protection" arguments as those are being made in the Fifth and Fourteenth Amendment challenges. Conservative activists otherwise typically tend to be supportive of the "prohibited federal government" argument as that is being made in the Tenth Amendment challenge. Pro-polygamy activists have repeatedly declared that marriage – pre-dating the invention of government - is a God-given right of the Individual for unrelated consenting adults, which may neither be re-defined/infringed by government ordinance nor re-defined/infringed even by majority vote.
Summarizing in totality, the three marriage-control-reversing challenges determine a number of concepts. Marriage is a fundamental right of the Individual. The federal government must treat all citizens equally. The federal government is prohibited from being involved in marriage. And not even a majoritarian collective is authorized to over-ride the fundamental right of the Individual to consenting-adult marriage.
The Fifth and Fourteenth Amendment challenges raise serious questions for debate about the validity of "anti-discrimination" laws, especially in regard to "Due Process" and "Equal Protection" clauses. Even so, the Tenth Amendment challenge is not only the most straight-forward but if the challenge succeeds, it could also be a tool for either side to use if they lose other cases.
If the Supreme Court agrees that the Tenth Amendment does prohibit federal involvement in marriage control (to thereby reverse DOMA), liberals and conservatives would each get a "win." In "losing" this challenge, conservatives would "win" this specific precedent which they want in other political battles (e.g., Missouri's "Proposition C" against federal mandated health insurance), while "losing" the ability to use federal government to legislatively stop same sex marriage laws throughout the individual States. In "winning" this challenge, liberals would "lose" in other political battles by this precedent, while "winning" this precedent to prevent another re-written DOMA in the future. In whichever way the Supreme Court decides the Fifth and Fourteenth Amendment challenges, the consequence of this Tenth Amendment challenge succeeding before the Supreme Court actually provides a tool for both sides, whether conservative or liberal.
Namely, as either side loses battles in the marriage control debate, they will realize that this Tenth Amendment precedent can help either "losing" side to abolish all marriage control for unrelated consenting adults - that is, the Polygamy Rights Win-Win Solution. Regardless of who uses this tool, everyone saves face. No one re-defines marriage. And everyone wins.
But for now, all three challenges proceed to the U.S. Supreme Court.
Both Sides of 'Goodridge' Validate Polygamy
July 8, 2010 Massachusetts
Gill v. Office of Personnel Management
Romer v. Evans
Court Decisions Secure "Polygamy Rights"
July 8, 2010 Massachusetts
Massachusetts v. United States Health and Human Services
10th Amendment Prohibits Government Controlled Marriage - Quotes
August 3, 2010
Show Me State Sends a Message On Obama's Health Care Law
DOMA and States Rights Make Strange Bedfellows
August 4, 2010 California
Perry v. Schwarzenegger
End Marriage Control from Both Sides - The Win-Win Solution
Kick Government Out of Marriage, Not Churches
[Reviewed for publication - Pro-Polygamy.com Review Board.]