Tenth Amendment Kills Defense of Marriage Act: Health Insurance Reform Next?

The Defense of Marriage Act got toasted in federal court last week, with a Nixon appointee ruling the law a violation of the Tenth Amendment—you know, that little gem conservatives love about powers not delegated to the feds being reserved to the States and the people.

Funny, I don't think I heard repeal of the Defense of Marriage Act on the teabaggers' to-do list. It's certainly on mine: the only help I need in defending my marriage comes from the one person wearing the ring that looks like mine.

But as David Montgomery notes, conservatives might want to cheer a little more loudly—or liberals more cautiously—for this affirmation of the Tenth Amendment:

In particular, a variety of states — including South Dakota — are challenging the Patient Protection and Affordable Care Act, the 2010 health care bill, in part on Tenth Amendment grounds.

Let's (incorrectly) oversimplify things here for a moment and say that these two measures are linked by the same interpretation of the Tenth Amendment — that a robust judicial interpretation of the Tenth will strike down both DOMA and Obamacare, while a liberal interpretation will uphold both laws [David Montgomery, "Tenth Amendment Collateral Damage," Behind Government Lines, 2010.07.09].

Montgomery poses a Constitutional gut check to both sides. Imagine if we Wellstone Democrats had to trade victory on health care for victory on same-sex marriage. Imagine if Gordon Howie could be vindicated in his crusade to destroy Obamacare but had to accept Adam and Steve's domestic partner insurance benefits and adjoining burial plots in veterans cemeteries.

I think we may avoid Montogomery's proposed dilemma. Attorney General Marty Jackley and his grandstanding pals on the health insurance reform lawsuit aren't making the same Tenth Amendment argument as the DOMA challengers did.

AG Jackley will want to review South Dakota v. Dole, which figures prominently in Judge Tauro's DOMA ruling. South Dakota v. Dole was our lawsuit against Uncle Sam over the 1984 National Minimum Drinking Age Act, which required states to raise their drinking age to 21 or lose some federal highway money. South Dakota sued, saying setting the drinking age was a power reserved to the states. In 1987, Chief Justice Rehnquist and six colleagues disagreed, establishing five criteria to justify a federal law under the Spending Clause, despite Tenth Amendment doubts:

1. the intent is "general welfare";
2. conditions are clear, so states know what happens if they participate or don't;
3. conditions must relate to the purpose of the programs involved;
4. the law must be consistent with the rest of the Constitution; and
5. the financial pressure involved can't be so huge as to effectively leave the states with no choice but to go along.
   

Judge Tauro found that DOMA fails to pass Constitutional muster in part on criterion #4, because DOMA violates the Equal Protection Clause. In other words, DOMA tells states, "You have to discriminate against same-sex couples." Not cool... and not replicated in any way by the health insurance reform law AG Jackley is challenging. The insurance mandate imposes no discrimination.

Satisfied with the above reasoning on the Equal Protection Clause, Judge Tauro dodges Massachusetts's claim on criterion #3, that DOMA's conditions are not germane to Medicaid, state cemetery policy, etc. But I would suggest Massachusetts has a winning argument on that point, too, that AG Jackley won't be able to replicate on the health insurance lawsuit. Keeping homosexuals from saying "I do" is at least a couple policy steps away from the purpose of Medicaid and veteran burials. In health insurance reform, requiring every citizen to carry coverage is pretty germane to health insurance policy.

Judge Tauro's ruling finds that DOMA clearly intrudes on state sovereignty by denying each state the right to define marriage. What similar intrusion on states' rights does the insurance mandate cause? How does the federal insurance mandate prohibit states from passing any number of their own laws relating to health insurance? Massachusetts was able to demonstrate a direct conflict between its sovereignty and the requirements of the Defense of Marriage Act. AG Jackley must show a comparable conflict by which the insurance mandate and other provisions of the Patient Protection Act prevent South Dakota from exercising its sovereignty on health care.

DOMA forced states to discriminate, imposed social policy through unrelated programs, and intruded on an area of state sovereignty with a long-standing, well-attested tradition. The Patient Protection Act does not do any of those things, at least not as clearly as DOMA. AG Jackley and his quixotic friends may have other Constitutional arguments to offer, but they won't much help in last week's Tenth Amendment ruling from Judge Tauro.

Of course, I could be wrong. Dr. Blanchard, a fellow supporter of legalizing same-sex marriage, find's Judge Tauro's ruling more odious judicial activism that reads the Tenth Amendment in a way that runs counter to 220 years of Constitutional practice. Your thoughts?