With U.S. District Judge Vaughn Walker's decision to overturn California's ban on same-sex marriages, we now have two landmark marriage equality cases wending their way forward through the legal process, with the Supreme Court looming as their potential final destination.
The first is the aforementioned Prop 8 decision. The second is last month's ruling by U.S. District Judge Joseph Tauro, who ruled that the federal ban on same-sex marriage, more commonly known as the Defense of Marriage Act (DOMA), was unconstitutional. Taken at first blush, this combination of midsummer rulings seem to represent a wave of support for same-sex marriage. But on closer inspection, it would seem that not all marriage equality cases are created equal.
In deciding Perry v. Schwarzenegger, Judge Walker seemed to anticipate that his decision had a date with the Supreme Court, and so he went out of his way to set the stage for the occasion. Over at Slate, Dahlia Lithwick contends that Walker more or less hardwired his ruling directly to the legal amygdala of the very Supreme Court Justice who would represent the swing vote in the case.
On the other hand, we have Judge Tauro's DOMA decision heading in the same direction. If Judge Walker's ruling anticipated a future showdown, Tauro's decision borrowed heavily from the zeitgeist. As Andrew Koppelman points out over at the Los Angeles Times, Tauro's "ruling relied on two arguments." One was that DOMA violated the equal protection clause of the U.S. Constitution. But the other argument was that the "the law interfered with the rights of states guaranteed in the 10th Amendment." The latter stance is the more problematic.
As anyone who's been following the political undercurrent knows, the past two years have witnessed the rise of a phenomennon known as Tentherism. Commonly enunciated by the denizens of the Tea Party movement, Tenthers hold to an extreme interpretation of the Tenth Amendment in the belief that the Federal government have such a limited authority to rule over the states "that virtually everything the federal government does is unconstitutional." Like, say, the Federal highway system.
The first is the aforementioned Prop 8 decision. The second is last month's ruling by U.S. District Judge Joseph Tauro, who ruled that the federal ban on same-sex marriage, more commonly known as the Defense of Marriage Act (DOMA), was unconstitutional. Taken at first blush, this combination of midsummer rulings seem to represent a wave of support for same-sex marriage. But on closer inspection, it would seem that not all marriage equality cases are created equal.
In deciding Perry v. Schwarzenegger, Judge Walker seemed to anticipate that his decision had a date with the Supreme Court, and so he went out of his way to set the stage for the occasion. Over at Slate, Dahlia Lithwick contends that Walker more or less hardwired his ruling directly to the legal amygdala of the very Supreme Court Justice who would represent the swing vote in the case.
On the other hand, we have Judge Tauro's DOMA decision heading in the same direction. If Judge Walker's ruling anticipated a future showdown, Tauro's decision borrowed heavily from the zeitgeist. As Andrew Koppelman points out over at the Los Angeles Times, Tauro's "ruling relied on two arguments." One was that DOMA violated the equal protection clause of the U.S. Constitution. But the other argument was that the "the law interfered with the rights of states guaranteed in the 10th Amendment." The latter stance is the more problematic.
As anyone who's been following the political undercurrent knows, the past two years have witnessed the rise of a phenomennon known as Tentherism. Commonly enunciated by the denizens of the Tea Party movement, Tenthers hold to an extreme interpretation of the Tenth Amendment in the belief that the Federal government have such a limited authority to rule over the states "that virtually everything the federal government does is unconstitutional." Like, say, the Federal highway system.
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