Archive for the 'Gay Marriage' Category

Civil Unions And Beer Wars On Devil’s Advocate

Posted by on Mar 31 2011 | Gay Marriage, Idiot Box (TV Show), PPC

It’s civil unions and Colorado’s beer wars this Friday on the Independence Institute’s television program, Devil’s Advocate. Same half-hour of top-notch public affairs programming, but in two segments. First, host Jon Caldara is joined by Troy Ard of the Colorado Federation of College Republicans and Jimmy Sengenberger of the Seng Center radio show for a debate over civil unions versus full marriage equality for gays and lesbians in Colorado. Then, Jon jumps into the battle over where beer can be sold in Colorado with Eric Wallace of Left Hand Brewing Co. and Dennis Dinsmore of Wilbur’s Total Beverage liquor store. So grab your main squeeze and a couple cold beers and tune in Friday, April 1 at 8:30 PM on Colorado Public Television 12. Re-broadcast the following Monday at 1:30PM.

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DOMA case and the Tenth Amendment

Posted by on Jul 08 2010 | Constitutional Law, federalism, Gay Marriage, Health Care, Tenth Amendment

(David Kopel)

Jack Balkin has an interesting post on today’s two Defense of Marriage Act cases from the federal District of Massachusetts, Gill v. Office of Personnel Management, and Massachusetts v. HHS. The latter case found DOMA unconstitutional, as applied to Massachusetts, because DOMA violates the Tenth Amendment by infringing the state’s traditional core sovereign power of defining lawful marriages. The most important parts of the Tenth Amendment analysis are at pages 28–36 of the opinion. Balkin is concerned because the Judge Tauro’s “Tenth Amendment arguments prove entirely too much. 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.” In particular:

The modern state depends heavily on the federal government’s taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA’s direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable– and unconstitutional– to the extent they interfere with state policies regarding family formation as well. Put differently, 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. 

Well, as my former boss, Colorado Attorney General Duane Woodard once put it, “There’s no liberal constitution or conservative constitution. It’s just the Constitution.” The Tenth Amendment is one of the roads that all conscientious American judges must travel, regardless of whether they personally like all of the places its leads. 

Balkin makes one error in his criticism of Judge Tauro’s Tenth Amendment analysis of congressional interference with traditional state government functions:

(In one of the wildest parts of the Massachusetts v. HHS opinion, Judge Tauro resurrects Chief Justice Rehnquist’s “traditional governmental functions” approach from National League of Cities v. Usery, which was specifically overturned in 1985 in Garcia v. San Antonio Metropolitan Transportation Company on the grounds that it was completely unworkable. The existence of Supreme Court authority, however, does not stop Judge Tauro; he simply notes that some First Circuit precedents predating Garcia are still on the books, and who knows, maybe the Supreme Court will change its mind!)

 That’s not precisely accurate. Judge Tauro structured his opinion around the 1997 First Circuit case U.S. v. Bongiorno, which post-dates (not pre-dates) Garcia. According to Bongiorno:

a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of  traditional governmental functions.

The Bongiorno test comes directly from the 1981 Supreme Court case Hodel v. Virginia Surface Mining & Reclam. Ass’n, which is still good law. Judge Tauro plausibly found that DOMA had each of the three Bongiorno ingredients. Balkin is right to point out that the new federal health control law could be found unconstitutional by any court which applies the Tenth Amendment as seriously as did Judge Tauro.


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Family Research Council update

Posted by on Jun 24 2010 | Gay Marriage, guns

(David Kopel)

Perhaps partly in response to my VC post yesterday, the Family Research Council has corrected its prior claim that the conservative pro-gay group GOProud supported national handgun carry reciprocity as a means of advancing interstate recognition of gay marriages. As the FRC now correctly explains, the marriage argument was offered by Missouri Democratic Senator Claire McCaskill, in explaining her vote against the handgun reciprocity proposal.

The FRC also states that it supports the Second Amendment, and points out that it joined an amicus brief in McDonald v. Chicago.


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Family Research Council vs. the Second Amendment

Posted by on Jun 23 2010 | Gay Marriage, guns

(David Kopel)

A new piece from the Family Research Council blasts Grover Norquist (President of Americans for Tax Reform; Member of the Board of Directors of the National Rifle Association) for joining the board of GOProud, an organization of conservative gay Republicans. Among the alleged sins on the GOProud agenda :

Equalize “concealed carry reciprocity” amendment with gay rights via state rights. Support guns being carried and recognized across state lines, in order to further the agenda that gay marriages legal in only a few states be recognized legally in all. (July 2009)

To FRC’s credit, they link to the endorsement article written by GOProud chairman Christopher Barron. The article says nothing about using national handgun carry license reciprocity as a tool to force states to recognize gay marriage licenses issued in other states. To the contrary, Barron’s article makes the obvious point that national handgun carry will helps gays protect themselves from violent crimes, including gay-bashing.

The FRC article would have been better if it had not made an unsupported claim about Barron’s supposed motive. Rather, the FRC could have more plausibly made the slippery slope argument that, regardless of supporters’  intent, national carry reciprocity might set a precedent for mandatory federal recognition of marriage licenses. I don’t see a strong slippery slope possibility here, but the FRC is free to have its own risk assessment.

And obviously the FRC is free to organize is policy preferences any way it wants. Personally, though, I think that federal legislation which directly protects the Second Amendment rights of all Americans is far more important than whatever tiny effect the bill might have on gay marriage.   (HT: Snowflakes.)


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