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.