Mann at AngryBear says Goldstein at ScotusBlog is wrong.
http://www.angrybear...ays-same-sex.html
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The Tenth Amendment does not trump or negate the Fourteenth Amendment--although I acknowledge that Kennedy and other uber-statesÂ-rights proponents do claim sometimes that it does. Kennedy does this, regularly, in state-prosecution criminal cases and in other lawsuits in state court when he effectively says that the Supremacy Clause exempts state judicial branches from its mandate. But he (unlike, say, Clarence Thomas) does recognize the application of the Supremacy Clause to state legislative and executive branches. And, presumably, to state voter referendums. Such as Prop. 8.
I think Goldstein improperly conflates the Tenth Amendment and the Fourteenth Amendment in these cases. The DOMA case is a Tenth Amendment case. The Prop. 8 case is a Fourteenth Amendment case. Just as with state criminal laws, a state law may violate the Fourteenth AmendmentÂs due process or equal protection guarantees to individuals, even if under the Tenth Amendment the state is entitled to enact laws within a generic genre--criminal law, family law, marriage law, for example. The Fourteenth Amendment prohibits states from enacting laws that, although they are within those generic genres, nonetheless violate individuals rights conferred by the Fourteenth Amendment or some other part of the Constitution that establishes individuals rights.
Kennedy does understand that. It was the basis for his opinion in Lawrence v. Texas, the state-criminal-sodomy-statute case in 2003.
Well said.
Cheers,
Scott.