Legal News

Same-Sex Marriage Supporters: ?Tenthers? By Any Other Name?

By Ashby Jones

We’ve written a bit in recent months about the so-called “Tenther” movement (here, here). It’s a push by many, mostly on the right side of the political spectrum, to invoke the Tenth Amendment to the Constitution to justify shooting down of new federal legislation in the age of President Obama.

The Tenth Amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

But a lawsuit playing out up in Massachusetts has reminded us that Tenth Amendment arguments can come from those wearing other political stripes, as well.

Last week, Massachusetts Attorney General Martha Coakley moved for summary judgment in a lawsuit, filed last July, brought by the Bay State against the federal government challenging the constitutionality of the federal Defense of Marriage Act, which defines marriage as a union between a man and a woman. Click here for the National Law Journal story, by Marcia Coyle.

In its lawsuit, Massachusetts has argued that DOMA’s definition of marriage violates the 10th Amendment as well as the Constitution’s Spending Clause by forcing “the Commonwealth to engage in invidious discrimination against its own citizens in order to receive and retain federal funds in connection with two joint federal-state programs.”

Although the Obama Administration has conceded the law is discriminatory, it still defends the law as constitutional. The administration in November filed a motion to dismiss the case. It must respond to Coakley’s motion for summary judgment by April 30.

In the same federal court, an earlier and parallel challenge to DOMA was filed last March by Gay & Lesbian Advocates & Defenders (GLAD) on behalf of a group of married gay and lesbian residents who contend they have been denied federal protections and benefits available to spouses because of the federal law.

Full post as published by Law Blog - WSJ.com on February 23, 2010 (boomark / email).