Why The White House Will Fight The Tauro DOMA Ruling

Why The White House Will Fight The Tauro DOMA Ruling

As a proponent of marriage equality, I agree with Daily Intel's Nitasha Tiku that the White House's decision to appeal Judge Joseph Tauro's DOMA ruling is, indeed, a case of bad timing -- especially at a time when the administration is doing its best to make pleasant-sounding noises over the prospect of ending the military's "Don't Ask, Don't Tell" policy. But she loses me here:

Based on President Obama's pattern of cognitive dissonance on gay rights, experts predicted a Justice Department appeal on the DADT injunction. The appeal of Judge Tauro's ruling on DOMA seems to prove them right, and just in time for midterms.

I'll be the first to tell you that the president is hardly at his cognitive best when it comes to his take on marriage equality, but the "appeal of Judge Tauro's ruling" doesn't really prove anything other than the fact that the White House sees the need to appeal the ruling. And, as it happens, it has a good reason to take up the fight. But, you'd have to read something about how Tauro decided the case. Tiku seems to understand that it had something to do with the Tenth Amendment, but she's got no idea what that means. For an explanation, here's Jack Balkin:

Judge Tauro's attempt to limit federal power through the Tenth Amendment so that it does not interfere with state prerogatives might delight members of the contemporary Tea Party movement (at least if it wasn't aimed at DOMA), but it should give most Americans pause. 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.

There is much to admire in Judge Tauro's bravery in writing these opinions, and in his forthright declaration that the federal government's policy is unjust and unreasonable. His two opinions are wild, audacious, and fearless in their logic. But for the same reason, they will and should be quickly overturned. I believe that the civil rights of gays and lesbians will someday be vindicated by legislatures and courts. But not in this way.

So, yes: this is bad timing, bad optics, rough politics, and difficult to explain without invoking some studied legal expertise. But appealing the Tauro decision, like it or not, is something just about any White House -- short of a deranged one -- would be obligated to do. Take heart, however: Judge Vaughn Walker's Prop 8 ruling looks like a stronger case that lacks these pitfalls.

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