Religion & Law

Michael P. calls our attention (here) to a decision by a federal trial-court judge in Massachusetts invalidating the federal Defense of Marriage Act.  According to that judge, "[t]he federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment." 

"[O]ffends the Tenth Amendment"?  Hmmm.  A number of us who contribute to MOJ teach or know a bit about "Constitutional Law", and I think I can report without fear of contradiction that law professors who believe that the Tenth Amendment has any judicially enforceable substantive content are (very) few and far between.  I also believe it is safe to say the this decision will be cheered by many commentators, journalists, and law professors who do not believe that the Tenth Amendment has any judicially enforceable content -- and who, in fact, have probably derided the few Rehnquist Court decisions that suggested otherwise.

And this observation reminds me of the conversation we had on MOJ a few weeks ago (see Patrick's intervention, for example, here) about whether it is ever appropriate for judges to (in effect) lie in order to achieve policy outcomes they regard as just.