Richard Epstein Defends DOMA, Points to "Collusion" in Tauro Rulings


In his column in Forbes, the country's most respected libertarian legal scholar, Richard Epstein, defends DOMA against Judge Tauro's judicial activism and the Obama Administration's apparent "collusion" in killing off DOMA through judicial activism.

Although Prof. Epstein both favors SSM personally and opposes DOMA personally (he's not only pro-gay marriage, he's pro-polygamy!), he recognizes something is seriously wrong when a judge like Tauro takes the law and the Constitution into his own hands:

Justice Antonin Scalia, prescient in dissent, noted that courts would find it hard to draw a principled line between the two. In Gill and Massachusetts, Judge Tauro didn't even try. Rather, he pushed hard in two inconsistent directions. He first claimed that the definition of marriage was exclusively a function of state sovereignty, . . . Indeed, he went so far to make the weird claim that even the federal power to tax and spend did not allow it to define marriage for the purposes of federal expenditures.

Epstein goes on to note:

This novel Tenth Amendment argument looks to leave those states that reject gay marriage in the clear. But not really, for at the same time Judge Tauro also claimed that the Equal Protection Clause, which in 1967 was used to strike down state antimiscegenation laws in Loving v. Virginia, invalidated any state ban on same-sex marriage. . . .

Nor, as it turns out, could the federal government keep DOMA as it applies to federal benefits. More legal magic. In Bolling v. Sharp, the companion case to Brown v. Board of Education, the Supreme Court held that the Equal Protection Clause that binds states under the Fourteenth Amendment had to be read into the Due Process Clause of the Fifth Amendment that binds the federal government. . . .

Congress advanced four such justifications for this statute. . . . The Justice Department disavowed them all. So much for tradition. Its sole defense of DOMA was that it was needed to preserve the status quo until matters were sorted out politically. Given that open invitation Judge Tauro concluded that all of the justifications offered in DOMA flunked even the lowest "conceivable" standard of rationality. Religious people will surely take umbrage at his one-sentence rebuttals of centuries of tradition.

This controversial case might well go up on appeal. But if so, it looks almost like collusive litigation, unless some true defender of DOMA is allowed, as an intervener, to defend the statute on the merits. As a supporter of gay marriage, I still think that the DOJ's faint-hearted advocacy is no way to run a legal system. Nor is it wise for courts to use the Equal Protection Clause as a club against conventional morality, deeply felt.

Prof. Epstein concludes, "We don't need a judicial precedent that will spark a nation-wide rerun of California's Proposition 8. We need courts to back off to democratic processes, imperfect as they are."