It's unlikely that Senate Democrats using the Elena Kagan confirmation hearings to criticize the Roberts court as "activist" will speak of Judge Joseph Tauro's two separate decisions on July 8 declaring the Defense of Marriage Act (DOMA) unconstitutional.
For me, reading Judge Tauro's decision in the case involving private plaintiffs was like hearing fingernails scratching a chalkboard. It is filled with nearly every annoying tactic employed by outcome-favoring judges. Another DOMA case decided the same day by Judge Tauro was brought by the very liberal Massachusetts Attorney General, Martha Coakley, at taxpayer expense.
In the case brought by individuals, including the spouse of former Massachusetts Congressman Gerry Studds, Judge Tauro cited a General Accounting Office report that DOMA implicated at least 1,049 federal laws. He ultimately found that DOMA violates the equal protection of laws. The 14th Amendment, in which the Equal Protection Clause is found, is directed only at the states, but Judge Tauro relied on the Due Process Clause of the 5th Amendment to get there. How's that for magic? He used big-government judicial activism rather than finding that Congress does not have an enumerated power relating to marriage.
I'm all in favor of judges finding unconstitutional laws unconstitutional. Liberal statists and Senate Democrats fearful of the country's burgeoning awareness of our decades-long drift away from the Founders' vision know that they need judges to protect big government. The left is entirely comfortable with liberal activist judges willing to accede to or create government power, as opposed to originalist judges who recognize constitutional limits on government power.
Judge Tauro's decisions did nothing to right the imbalance. They will, however, make values voters and social conservatives focus even more on constitutionally limited government. Instead of seeking federal legislation that purportedly advances family issues, they will seek repeal of federal laws antithetical to family values.
President Obama's real (and perhaps only) gift to America may be that he set into motion the greatest movement in modern history towards constitutional conservatism. He's made the politically inactive active. Even conservatives who did not previously describe themselves as "constitutional" conservatives now have a greater focus on limited, enumerated, and separated powers that, hopefully, will prevent even Republican legislators and presidents from going astray.
Writing about the DOMA decisions, my favorite libertarian writer, Jacob Sullum, describes his conversion to an equal protectionist as applied to gay marriage. In doing so, he takes a whack at social conservatives: I am tired of defending the constitutional principles that social conservatives use to restrict liberty, because they so rarely return the favor by supporting those same principles when the effect is to expand liberty.
He has a point, but he errs by limiting his whack at just social conservatives. There are plenty of constitutional inconsistencies from every quarter, including libertarians.
The Equal Protection Clause of the 14th Amendment is that "No State shall ... deny to any person within its jurisdiction the equal protection of laws." If courts were to uniformly apply the Equal Protection Clause to marriage, arguably there should be no income tax marriage "penalty," for that would violate the equal protection of married versus unmarried individuals.
There have been any number of bastardizations of the Equal Protection Clause, some to give more benefits to certain individuals, and others that actually deny "protection of laws" to some individuals. Judge Tauro writes, "[I]t is only sexual orientation that differentiates a married couple entitled to federal marriage-based benefits from one not so entitled."
Are federal benefits, though, a "protection of laws" contemplated by the 14th Amendment? It's a tough sell to say that the post-Civil War amendments were intended to allow for the redefinition of the single most basic concept of marriage, which is a unique form of union between a man and a woman. I am not convinced of the meticulously logical Mr. Sullum's logic in this instance.
My libertarian instincts kicked in when I read Judge Tauro's reference that at least 1,049 federal laws are implicated by DOMA. Maybe -- just maybe -- the constitutional problem is that 1,049 federal laws somehow involving marriage are too many, as opposed to the definition of marriage consistent with every culture since the beginning of recorded history, even during the beginning of the fall of the Roman Empire.
It is fair, however, for libertarians to ask why social conservatives weren't focused on the unconstitutional excesses of the Bush administration and Republican Congresses during his time in office. Opposition always sharpens one's focus, and libertarians are always in opposition. Many social conservatives looking back now see what they overlooked, and how establishment Republicans paved the way for the even more egregious unconstitutional excesses of Obama, Reid, and Pelosi.
More social conservatives are now beginning to understand that by adhering to the Constitution and electing constitutional conservatives rather than establishment Republicans, traditional values stand a better chance of being protected. The federal government has taken too much power from the states and individuals. With that came the corrosion of values. Establishment Republicans were very much responsible for that shift of power to Washington. Lesson learned.