Thursday, July 22, 2004
Herewith, the cautionary tale of 233 benighted legislators who imagined that they could "defend" one institution, heterosexual marriage, by blithely dismantling two others -- the doctrine of separation of powers, and Article IV of the Constitution:
The House approved a bill yesterday to strip the federal courts of jurisdiction over same-sex marriage cases, despite warnings by opponents that the measure is unconstitutional and would open the floodgates for efforts to prevent judges from ruling on other issues, from gun control to abortion.UPDATE: Here goes nothing! From the NYT (courtesy of our esteemed colleague Michael Miller at Public Domain Progress):
GOP sponsors described the bill as a fallback measure that would prevent federal courts from ordering states to recognize same-sex marriages that are permitted by other states. The bill, drafted by Rep. John N. Hostettler (R-Ind.), would prevent such a ruling by denying all federal courts, including the Supreme Court, jurisdiction to rule on the constitutionality of the Defense of Marriage Act, a 1996 federal law that says that no state has to recognize same-sex unions established in any other state.
Some social conservatives contend that it is only a matter of time before a federal court attempts to force the federal government or the other 49 states to recognize the same-sex marriages that Massachusetts began sanctioning in mid-May . . . .
But the bill's congressional opponents, several constitutional scholars and a wide array of civil liberties groups called it a nearly unprecedented attack on the constitutional separation of powers among the judicial, legislative and executive branches of government . . . .
In a letter to lawmakers this week, Chai Feldblum, a professor at Georgetown University Law Center, said the last time that Congress passed a law stripping the Supreme Court of authority to hear a constitutional challenge was in 1868, when it feared that the court might invalidate the military Reconstruction of the South after the Civil War.
"When legislators rail that 'unelected judges' are finding legislative acts unconstitutional, they are attacking the very structure of our democracy," Feldblum wrote.
In recent decades, there have been calls for Congress to strip the courts of jurisdiction over numerous issues, including school desegregation, abortion and public displays of the Ten Commandments. But none has passed. Whether the Supreme Court would agree that Congress has power to wall off such areas is unclear, because the question has not been tested, scholars said.
A lesbian couple who married in Massachusetts sued the federal government to have their union legally recognized in the rest of the country. The couple, the Rev. Nancy Wilson and Paula Schoenwether, married on July 2. They applied for a marriage license in Florida afterward and were denied. The lawsuit names Attorney General John Ashcroft and a county clerk, Richard L. Ake. A spokesman for Mr. Ashcroft declined to comment, saying the office had not yet seen the lawsuit. Mr. Ake said he was following Florida law when he denied the couple a license.