Jacob Sullum’s “Who’s Afraid of Federalism?”

One point ought to be made about Mr. Sullum’s column: his characterization of what the federal government is doing to MA is incorrect. The flaw is to be found in the following passage:

In determining Medicaid eligibility, for example, Massachusetts had to count married people of the same sex as separate individuals rather than a single household. In operating two state-owned military cemeteries, it had to turn away spouses of veterans if they happened to be of the same sex.

By requiring Massachusetts to pretend that gay marriages do not exist in cases like these, Judge Tauro concluded, the federal government was impermissibly intruding on family law, “a quintessential area of state concern.” He noted that the definition of marriage has long been viewed as a power “reserved to the states” by the 10th Amendment because it is “not delegated to the United States by the Constitution, nor prohibited by it to the States.”

The problem lies in the “requirement” language. The federal government does not require MA to behave this way. MA is only “required” to behave this way if it is to receive federal funding that it is not in any way entitled to receive. There is therefore no intrusion into state affairs, since MA can simply refuse to give gay spouses the benefits in question. It would be quite a different story if the federal government were requiring the state of Massachusetts to not recognize gay marriages at all. It is doing nothing of the sort, however: its action is akin to conditioning transportation grants on the enactment of a specific speed limit.

Mr. Sullum is correct in his criticism of those who argue against this decision while maintaining a vague support for states’ rights. He is incorrect in his assessment of the funding relationship which exists between the federal agencies subject to DOMA and the states. This prong of his analysis therefore fails.


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