Welcome to the end of a very weird week for news, one in which we found ourselves saying some of the same things as Ann Coulter and saw the 10th Amendment used for something besides poisoning a progressive cause.
The big Massachusetts ruling for marriage equality yesterday is not just blockbuster, but odd. U.S. District Judge Joseph Tauro declared the anti-gay Defense of Marriage Act unconstitutional in two ways. First, Tauro said it violated the principle of equal protection, which is usually found in the Fourteenth Amendment but which Tauro argued from the Fifth Amendment. Second, Tauro argued that the federal government had overstepped its bounds in telling Massachusetts which couples it could consider married. That's a violation of the Tenth Amendment, he wrote, drawing on the favored constitutional provision of states'-rights conservatives.
But here's the thing: states' rights cut both ways. Massachusetts Attorney General Martha Coakley released a statement that it's "unconstitutional for the federal government to decide who is married." In this case, that concept helped the same-sex couples in her state, where marriage is legal. The concept threatens to lock gay couples in states that ban gay marriage into being second-class citizens forever.
A lot of people get mad when you compare the struggle for civil rights for sexual minorities with the struggle for civil rights for racial minorities. There are of course key, substantial differences between the two. But with regard to the legal question of whether we need a state-by-state remedy or a federal one, the comparison is clear. Gay couples living in Massachusetts have a very different set of rights from those in Mississippi. Should the federal government ultimately allow that gap in equality to persist?
Here's Coakley wrestling with the federal question on the show last night:
Keep in mind, this has to do solely with what Massachusetts has done, which is extend civil rights, as we believe it should be. We hope this leads to the extension of civil rights throughout the country. We don't think it will cause the shrinking of them. . . . What we said is that Congress cannot not, by a statute, change what Massachusetts has done. The reverse isn't true. It doesn't mean that it will affect other states right now, one way or the other. It just says that Congress cannot pass a law that the judge has found no basis but [for] you to discriminate.
We're talking about civil rights and what Massachusetts has done. We think it's a good effect for Massachusetts, and we hope it will condition the discussion for civil rights across the country.
UPDATE: And here's Andrew Sullivan, on his blog:
The Obama administration, meanwhile, now has to decide whether it will further defend DOMA in the courts, fighting against the principles of the tenth amendment so dear to conservatives or the fifth amendment so dear to liberals. The incoherence of the Republicans and the cowardice of the Democrats are now exposed more than ever.