REMOVING FEDERAL COURT JURISDICTION
WON’T SAVE MARRIAGE
By Richard G. Wilkins
Professor of Law and Managing Director
The World Family Policy Center
J. Reuben Clark Law School, Brigham Young University
Provo, Utah 84602
(801) 422-2669
Some individuals, including most recently Pat Buchanan, assert
that it is not necessary to amend the Constitution to “protect marriage.”
The same thing can be accomplished, they assert, by re-emphasizing
Congress’ conclusion that marriage is between a man and a woman
(the federal Defense of Marriage Act or DOMA) and then insulating
DOMA from federal court review by stripping federal courts of jurisdiction
to address marriage.
The proposal seems slick enough. But it will not preserve marriage
and will not reprimand an out-of-control judiciary.
Article III of the Constitution indeed provides that Congress can
eliminate the jurisdiction of lower federal courts (and the Supreme
Court) over marriage. But nothing in the Constitution gives Congress
the power to prevent state courts from invoking the Due Process
Clause in relation to marriage. The Supremacy Clause provides that
the Constitution is the “supreme law of the land.” Accordingly,
whatever Congress’ power over federal courts, Congress cannot prevent
state courts from deciding what the Constitution says about marriage.
As a result, relying on DOMA and then “stripping away” federal court
jurisdiction would NOT preserve marriage.
On the contrary, if Mr. Buchanan’s approach were adopted, the Massachusetts
Supreme Judicial Court would feel absolutely free to declare that
its recent decisions are mandated, not only by the Massachusetts
Constitution, but by the U.S. Constitution as well.
And, anyone who has read that court’s opinions will tell you, the
Masschusetts Justices would be delighted to have
that opportunity. Thus, “stripping” federal jurisdiction over marriage
will only give us the decision of Massachusetts as the “final” reading
of the U.S. Constitution – which other activist state courts would
thereafter follow.
Thus, this is not a "fix" that will save either the Constitution
or marriage. Jurisdiction stripping won't “save the Constitution”
because state courts will be free to misinterpret it at will. Those
state judges, as in Massachusetts, can be expected to misread the
Constitution to create rights never intended by the Founders – rights
not supported by the history, traditions and actual practices of
the American people.
Finally, this approach is hardly “new.” Mr. Buchanan may be the
most recent person to talk about jurisdiction stripping, but the
idea is as old as the Constitution. And, it has NEVER been successful.
“Jurisdiction stripping" has been the proposed "fix"
for everything from school prayer to abortion to the 10 Commandments
dispute to marriage. But, for the past 50 years, Congress has NEVER
adopted a "jurisdiction stripping" measure -- and it never
will. Why? Because this approach mandates that the Constitution
will mean 50 different things in the 50 different states on the
most divisive social issues. (“Jurisdiction stripping” is ONLY raised
on contentious issues. Do we really want additional confusion on
such questions?) Whatever Americans think about prayer, abortion,
the 10 commandments or marriage, we all -- at the end of the day
-- want the Constitution to mean the same thing everywhere in the
U.S.
In sum, for jurisdiction stripping to work, both houses of Congress
would have to be convinced (1) that adopting a statute that WILL
result in inconsistent constructions of the Constitution and (2)
that only “might” protect marriage (3) is worth doing. Thus, however
catchy “jurisdiction stripping” may seem at first glance, this is
a political solution that just doesn’t add up.
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