In the clear light of the next morning, I guess I’m prepared to go some of the way with Jack Balkin’s critique  of Judge Tauro’s two DOMA decisions. The equal protection argument advanced in Gill is certainly in tension with the Tenth Amendment argument advanced in Commonwealth. If the right to define marriage is to be reserved to the states, what exactly does equal protection mean, when the laws can vary so much.

Consider Reynolds, the famous 1890 decision in which the Supreme Court ruled that polygamy was not a right protected under the Free Exercise clause. To be sure, the decision did not involve state law; at the time, Utah was federal territory (albeit governed de facto by the LDS Church). But let’s leave aside the issue of how Reynolds has become applicable to the states since the religion clauses were “incorporated” in the middle of the last century.

Suppose the court were to reverse Reynolds and Utah were to go ahead and make Mormon “plural marriage” legal. Would Judge Tauro’s equal protection argument require the federal government to provide marriage benefits to all the wives of a one husband? Maybe there would be a rational basis for deciding not–namely, that marriage benefits can rationally (on money-saving grounds?) be limited to one spouse per customer. The question is whether a state, acting according to its own marital lights, can force the feds have to cough up benefits. Probably not.

Still, it’s going to be fun to watch the Tenth Amendment enthusiasts argue that, well, when it comes to family law, the federal government actually has an enumerated right to intervene.