House Republicans attempt to choke off judicial review of anti-gay laws.

The House Republicans are playing a dangerous game that they may find comes back to bite them in the ass in the future. Last Thursday they passed a bill that would amend the 1996 federal Defense of Marriage Act by effectively making it immune to Judicial review even by the SCOTUS.

The fallback House bill would strip the Supreme Court and other federal courts of their jurisdiction to rule on challenges to state bans on gay marriages under a provision of the 1996 federal Defense of Marriage Act. That law defines marriage as between a man and a woman, and says states are not compelled to recognize gay marriages that take place in other states.

Specifically the bill—H.R. 3313 —says the following:

This Act may be cited as the `Marriage Protection Act of 2004’.
SEC. 2. LIMITATION ON JURISDICTION.

    (a) In General- Chapter 99 of title 28, United States Code, is amended by adding at the end the following:

`Sec. 1632. Limitation on jurisdiction

    `No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.’.

    (b) Amendments to the Table of Sections- The table of sections at the beginning of chapter 99 of title 28, United States Code, is amended by adding at the end the following new item:
    1632. Limitation on jurisdiction.’.

Do you follow that? This amendment will put the DOMA and itself beyond the reach of even the Supreme Court of the United States to make rulings on with regards to its Constitutionality. Imagine if these fine Representatives had been around to write laws with regards to slavery or segregation? If they succeed with this it’s probably a sure bet that they’ll go back to that well time and again with any other laws they feel they need to “protect.” Who needs to come up with a Constitutional amendment when you can just say your law is not open to being judged by the very branch of the government delegated to make such determinations? Of course, the hard-core Conservative base love this new law:

Tony Perkins of the Family Research Council said the legislation is a welcome interim step. “It provides us the opportunity to isolate some of these judicial rewrites of marriage. Until we can get an amendment to the Constitution, this will keep it from spreading,” Perkins said.

Supporters said the House legislation would protect the institution of marriage by reining in federal judges who might otherwise impose gay marriage on states that have banned it. “Marriage is under attack,” said Rep. James Sensenbrenner, R-Wis., referring to the Massachusetts state court decision allowing same-sex marriages.

One after another, Republicans criticized what they called “activist” judges, with one lawmaker comparing the Supreme Court to the Soviet Politburo. Democratic Rep. Jim McGovern, D-Mass., responded that Republicans did not complain of judicial activism after the high court’s 5-4 ruling that ended ballot recounts in Florida and effectively called the 2000 president election for George W. Bush.

Indeed. It seems the Conservatives only consider the problem of “activist judges” to be a problem when they’re ruling against what the Conservatives want, but not a problem when they’re ruling for them.

The effect of the bill would be to single out gays and lesbians, barring them from going into federal court to seek to have their marriages recognized, several Democrats said. Civil rights groups said the bill is unconstitutional for that reason.

“We face no less than a sign on the courthouse door: ‘You may not defend your constitutional rights in this court. You may not seek equal protection here,’” said Rep. Tammy Baldwin, D-Wis., the House’s lone declared lesbian. “Today, the ‘you’ is gay and lesbian citizens. But who would be next?”

A good question and one which the hard-core Conservatives might want to consider carefully. At least some of the Republicans out there recognize how this could come back to bite them in the ass in the future:

Some Republican opponents of the legislation also said they wanted to avoid setting a precedent that could used by a Congress controlled by Democrats to satisfy their allies or by lawmakers who wanted to shield future unconstitutional legislation from federal court review.

Say, aren’t Democrats supposedly big on limiting the 2nd Amendment? Be a real shame if they managed to gain control of Congress and then passed a law effectively outlawing private gun ownership which also puts review of its Constitutionality beyond the reach of the SCOTUS, wouldn’t it? Once you’ve gone to that well you can be sure they’ll make repeat visits.

Not that this should be a big surprise. The Conservatives have tried to establish a similar law with regard to Judicial oversight of laws regarding establishment of religion (S. 2082), one which puts the Pledge, Ten Commandments, and National Motto beyond court review (S. 1558),  and a law that would basically allow Congress to overrule the SCOTUS if it wants to ( H.R. 3920). The SCOTUS has been a thorn in the side of “activist Conservatives” for a long time and it appears they’re working hard to limit the courts in any manner they can muster. I just hope they realize what a can of worms they’re trying to open.

14 thoughts on “House Republicans attempt to choke off judicial review of anti-gay laws.

  1. What can I say?  Congressmen taking it upon themselves to actually start taking apart the system of government itself?  It sounds like insanity.

    Hmmm.  Does this mean ‘under god’ stays in the pledge, but “justice for all” has to come out?

    capcha “income,” ‘cause it’s all about the money baby!

  2. There’s no way this law can withstand Constitutional inspection is there?  Seems like a blatant end-run around the separation of powers to me.

    I need to check, but I’m fairly certain I owe my Democratic representative some hate mail…I’m think I saw his name in the Yea column on this one.  I won’t vote against him, but I ain’t gonna vote for him either (he’s not got any serious opposition, so my sitting out should not endanger whatever slim chances we have for a Democratic house.)

    Living here in the armpit of the nation, aka Florida, we have also been treated to a recent gender bender court case regarding the rights of transgender citizens to marry.  Or rather, not marry…

    Ain’t freedumb grand?!?
    —weasel

  3. Don’t worry.  The Supreme Court cannot logically allow such a law to exist.  House members, imho, often lack any professional-level legal apptitude—and this tactic smells ripe of such.

    Each branch has its unique power; These individually unique powers cannot be diminished by the other branches.  Without such, our republic lacks one of its most fundamental, truly basic strengths:  checks and balances.

    .rob adams

  4. What pompous asses!  One would think that continually having congressional law overturned by the supreme court would send a message to congress that said laws just might be unconstitutional.  Instead they’ll take the more child-like approach to the matter and attempt the circumvent the non-supportive authority figure in order to get their way.

    This extremely myopic approach will either lead to the plan’s overall failure or will turn turn each ruling party into some sort of supreme branch of government unto itself.

  5. Well, perhaps that Supreme Court will hand down an edict having these House Members arrested.

  6. I wouldn’t be so sure of that, Rob. There seems to be some debate on whether or not Congress can actually make such a law:

    All these questions are ripe for federal courts to consider. But the MPA would deny them the opportunity to do so. Would the MPA’s jurisdiction-stripping itself be unconstitutional?

    Certainly, it would seem to be unprecedented: No prior law has ever completely removed an issue from the Supreme Court’s reach. Indeed, according to the non-partisan Congressional Research Service, there is no precedent “for a law that would deny the inferior federal courts original jurisdiction or the Supreme Court of appellate jurisdiction to review the constitutionality of a law of Congress.”

    But just because a law is unprecedented, doesn’t mean it’s unconstitutional. It is well-settled that under the Constitution, Congress can control lower federal court jurisdiction. And the Constitution says that Congress can make “exceptions” to even the Supreme Court’s appellate jurisdiction, under which DOMA cases would fall. (The Court’s “original” jurisdiction over cases such as interstate territorial disputes, however, is set in stone.)

    Again, though, there is an interpretive problem: What does the power to make “exceptions” mean, exactly? And, is that power limited by constitutional separation of powers principles?

    After all, jurisdiction-stripping takes power from the Courts, and leaves it with Congress (or here, the States). Suppose issue-based jurisdiction-stripping like the MPA’s is permissible. Then whenever the controlling party in Congress does not like the way courts were handling an issue, it can pass a new law stripping courts of the right to review that law. That just doesn’t seem right – at an extreme, it would render the courts toothless, and give Congress fangs.

    Can Congress indeed strip the Court of jurisdiction in such a way that it undermines the general constitutional allocation of power among the branches of government? And if it cannot, then is the MPA that kind of prohibited jurisdiction-stripping?

    This is one of those legal gray areas that has never been tested before.

  7. The trouble with this is it may be Constitutional.

    Article III, Section 2, Clause 2 of the U.S. Constitution:

    In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

  8. Such ouster clause are not exactly new and have been used before. For example initial labor union laws during the new deal era kept getting strike down by the courts. Long story short, after the President threatened some ‘judicial ass whipping,’ eventually labor boards were created and these tribunals are to a certain extent are areas of law where the courts do not intervene. Their only role in judicial review of labor cases would be if there is a gross miscarriage of justice.

    Of course this brings up the whole point about the ability of the supreme court to strike down acts of congress as unconstitutional. This ‘power’ was actually declared by the supreme court themselves in the case of Marbury v Madison in 1803. The court merely interpreted the law as giving them this power. The whole background to this case is that Washington and Adams would only appoint people from their Federal party to the court. So problem arise when the Federalist lost power to the Republicans and the new President wanted to strike down the last act of congress appointing Federalist to the court. And you thought such political judicial appointment is a recent thing.

    Of course regulations and exceptions can be made with regards to the constitution. There is no such thing as unrestraint right. There is constitutional protection of freedom of speech yet obscenity is deemed to fall outside of speech. Free speech entails the right to protest but laws may restrict anti-abortion protest in areas where there is an abortion clinic. 

    The question then simply is how the court interprets the particular piece of law. Suffice to say a court can either accept the ouster or reject it. After all they did give themselve the power to rule act of congress unconstitutional.

    By the way, abbreviating the Supreme Court of the US to SCOTUS is a really bad idea. Add a “R” and substitute the “S” to “M” and that is what it seems to me when I read it.

  9. I’m no constitutional legal expert.  But, the way i see it (and i bet others of like mind shall, too) is that marriage is a contract between two (or more (noting the GayMafia’s 20 Year Agenda) parties.

    Can you imagine if certain contracts were only binding and legal in certain states ?  UGLY.

    I think what we’ll see is a re-definition of marriage from being a fuzzy civil-n-religious contract to being an entirely civil matter.  I say “fuzzy” because this marriage contract thing, imparticular, has peculiar constraints, unlike no other contract within our civil code.

    It’s high time we bring the marriage contract into the fold of proper civil contraints (and freedoms).  Contracts have no limit in the number of parties, no in their gender type.  Neither should marriage.  Further more, the Defense of Marriage Act (DOMA), in my absolutist oppinion, is entirely extra and contrary to the US constitution.

    I think we’ll rightly see this war fought on the grounds and notion of marriage being a civil contract, akin to any other that individuals or entities enter into every day in our free-market society.

    After all, all Gaydom is asking for is equal civil protection of shared assets and interests.  You can’t get more contractual-esque than that.

    .rob adams

  10. “Suppose you were a congressman.  And suppose you were an idiot.  But I repeat myself.”
    – Mark Twain

    Short-term focus on something that benefits their agenda, without considering how it could be used in the future.  But how do you rally the people with a slogan like “Preserve the separation of powers!”

    Preserve the what, now?  Is that for or against communism terrorism?

  11. I think gay marriage is wrong..  it is a biblic matrimony between a man and woman.

    And btw, the whole idea of marriage being a legal status is just stupid, it’s just a kind of relationship, why should it have legal consequences?

    Would you make your gf/bf sign a contract “half of what you own is mine if you break up with me” ?

    Get rid of legal marriage, and homos will pipe down about this insignificant matter.

    It’s only of importance to people who plan on being “housewives” and their economy.
    Housewives are burden on society anyways, so get rid of those as well.

    PS. I have nothing against homosexuals or their rights, but the problem here is not whether they can marry, it’s the legality of it, which should be none.
    Why is it illegal to be married to several people?

  12. Understanding where bigotry comes from may clarify the seemingly illogical stances taken by so many entries. Anthropologists studying a group of monkeys in the jungle would remove one of them and paint it green. When returned to the tribe, the others would fall on it and kill it. The herd instinct for survival recognized something different and survival of the fittest demanded eradication. Wouldn’t it be nice if we used our brains, instead of our instincts? Legality has nothing to do with it. Marriage is a civil contract, nothing more, nothing less, except where myth creeps in. wink

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