Posted on 07/18/2004 7:35:18 PM PDT by paltz
Realizing that a constitutional amendment banning gay marriage faces little chance of passing soon, if ever, House Republicans yesterday discussed alternative approaches, including stripping federal courts of jurisdiction over the issue, passing a federal law to define marriage and using the appropriations process to ban gay marriage in Washington.
All the legislative action on gay marriage is currently in the Senate, but the House GOP is rapidly developing its own tactics. Leaders will take their first step next week when they take up Rep. John Hostettler’s (R-Ind.) “jurisdiction stripping” bill. This would bar federal courts from hearing lawsuits related to gay sex and marriage.
While the House will not debate a constitutional amendment before the summer recess, it might take it up when Congress resumes in September.
Majority Leader Tom DeLay (R-Texas) told reporters yesterday that he plans to use “jurisdiction stripping” measures to achieve other social policy goals as well. [For an example of the legislative language that would be used, see below.
For example, he will push legislation to stop federal courts from hearing lawsuits related to the words “under God” in the Pledge of Allegiance.
The U.S. Constitution establishes only the Supreme Court but leaves it to Congress to “ordain and establish” the lower federal courts. Arguably, therefore, Congress has the right determine the federal courts’ jurisdiction.
“That [Supreme Court] building is the Taj Mahal. … Everybody should stay away from it,” he said about Congress’s past unwillingness to challenge Supreme Court decisions.
DeLay said the time is “not quite ripe” to apply the GOP’s new legislative tactics to the issue of abortion.
The majority leader’s decision to consider voting on a constitutional amendment to ban gay marriage is a change of tack. When authorities in San Francisco began issuing marriage licences to same-sex couples in the spring of this year, DeLay appeared to oppose amending the Constitution.
But yesterday he told reporters that the Senate action had moved the politics of the issue ahead. “The fact that the Senate brought it up for a vote made you all write about it,” he said, adding, “The debate has been joined.
“The protection-of-marriage amendment is not an offensive action; it is a defensive action taken in direct response to the brazen usurpation of legislative authority by four judges in Boston.”
A senior Republican lawmaker, who spoke on the condition of anonymity, said the amendment had been brought up by conservative activists in hopes of stirring grassroots support close to the election. “Gay marriage is a big base issue.
Activists see the issue as one of timing, too. They’re [politically astute]. But the Senate jumped the gun, which puts us in an awkward situation,” the lawmaker said.
Rep. John Shadegg (R-Ariz.) echoed DeLay: “Congress is not choosing to do this. … It is important to educate the American people.”
Lawmakers kicked aides out of their weekly conference meeting yesterday to discuss alternative approaches to blocking gay marriage. Members of the Republican Study Group also discussed the issue.
Rep. Jo Ann Davis (R-Va.) has proposed a Definition of Marriage Act (DOMA) for Washington, D.C. DOMA has defined marriage in 38 states but not in the District of Columbia, which the Constitution gives Congress the authority to regulate.
Davis told The Hill that one idea would be to vote on her proposal as an amendment to the D.C. appropriations bill. “That’s a thought; it’s something we are contemplating,” she said. “It depends on leadership.”
Rep. Ernest Istook (R-Okla.) sent a “Dear Colleague” letter yesterday to lawmakers decrying the need for a “Plan B” in case a constitutional amendment fails to pass.
Istook wrote that the goal is “straightforward so that every Member of Congress is clearly on the record; Have immediate impact, so the same-sex marriages happening in Massachusetts do not continue to threaten the institution of marriage; [and] Require passage by only a simple majority in Congress.”
Aides said such a law would be unconstitutional, however, because it violates the Constitution’s Commerce Clause.
The prospect for passing an amendment remains bleak after yesterday’s 48-50 defeat in the Senate.
Sen. John Cornyn (R-Texas), who chairs the Senate Judiciary’s Constitutional subcommittee, told reporters: “I think [the House] can learn from our experience in debating this issue,” adding that had the Senate just voted on a measure defining marriage between a man and a woman would have given proponents at least 10 more votes. The cloture motion, however, still would have failed.
A state cannot be made to recognize something that is illegal in that state. Nevada allows prostitution in certain counties. But hookers cannot cross the border into Utah and practice their trade, because prostitution is illegal in Utah. Likewise gay marriage. If it is illegal in Utah then Utah doesn't have to recognize it.
If DeLay applies this tactic to abortion, then there is no way for a case to make it to the Supreme Court for a ruling. Roe v Wade could never be overturned. Abortion would remain legal unless a Constitutional amendment is passed outlawing it.
Might be reasonable to consider. I think the original intent of the framers of the constitution was for a judiciary to be appointed by the elected officials, so the people through elections would have the last word. Maybe eventually liberalism will fall out of favor even in Massachusetts.
No, because the Congress has the absolute power to regulate the Courts and to determine their jurisdiction. Any law stripping the Federal Courts of jurisdiction would automatically include a provision putting the law itself beyond the jurisdiction of the Federal Courts.
See the Constitution Article 3, Section 2, Clause 2:
"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.
And are there any other instances of the Congress passing laws that say the courts do not have jurisdiction over a certain subject or topic?
Yes, but I can't quote them to you. Suffice it to say that this is settled law.
What if: Nevada offered some type of
'temporary instant marriage hooking'
licence to pros ... with internet nuptials,
seems to me it would be legal in all 50.
Of course hookers cannot ply their trade in Utah and wouild be subject to arrest and prosecution if they did. This has about as much to do with the full faith and credit provision of the Constitution as moonlight has to do with moonshine.
The full faith and credit clause ensures that if the hookers go to Utah on a shopping trip they can't be arrested and prosecuted in Utah for their activites in Nevada even if they signed a confession in front of witnesses.
And if Nevada law provided that Hookers could marry, then that marraige license would be legal in Nevada and would have to be honored in Utah.
I understand your position, and once the abomination of gay "marriage" takes hold somewhere, this is certain to be tested in the courts.
I'd like to see a decision along the lines you suggest, but there would have to be a whole lot of precedent overturned to reach that conclusion.
1) The efforts support Traditional Marriage which is being undermined in the courts. 2) The only place where there is gy marriage is in Massachusetts where the courts overrode the legislative process totally. 3) The issue is what this will do to our children if the courts prevail. Weep for them.
I was just pointing out to #17 where the argument of 'universal recognition' is coming from. You know that point will eventually be used in front of SCOTUS.
"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.
Congress would be passing a law nullifying Supreme Court original jurisdiction.
That's right. Problem is, people don't trust the federal courts to reach that same conclusion, so stripping the courts of jurisdiction is considered a preemptive strike against future bad decisions. It's a pretty dumb idea, if you ask me. The matter will still reach the Supreme Court regardless of whether the lower courts are stripped of jurisdiction.
While they are at it they should strip the courts of the jurisdiction to hear any issue. Many on the federal bench have demonstrated they are not mature enough to use their position responsibly.
that example is not applicable to marriage.
when the federal DOMA goes (and the SOCTUS will toss it) - Massachucetts gay marriages will be legal in Utah.
Referring to 49, no. The section you are quoting is not relevant in the slightest. It is speaking about legal actions iniiated by one state against another. Those go straight to the Supreme Court. Again, not relevant.
The law removing the DOM from federal court jurisdiction would NOT nullify, modify or in any way affect the provision you quote.
ditto that.
I have been reading The Myth of Separation" by David Barton, which gives a short history of the writing of the Declaration and the Constitution and the courts. It is very informative and goes over the misgivings of Jefferson, Madison and others that the SC could usurp the power of the other branches and become a tyranical imperial judiciary.
The first time the Court challenged a Presidential act resulted in Marbury vs. Madison. Jefferson won.I won't go into that, but Jefferson thwarted the wishes of the court and had some choice words to say.
De Tocqueville, the French writer who traveled the US and wrote voluminously about the govt. and people here, thought our system the fairest and most just he had ever seen. However, he said that French Courts given the same opportunities would usurp all the power so that the country would be run by a handful of tyrants.
Foilks, that is exactly what has already happened here, and I don't see enough will in the legislature and excutive or enough understanding by the people to wrest the power back away from them. DeLay is more like the early legislators and you see how the press and the libs treat him with contempt. The libs like it the way it is because secular, liberal decisions are what they seek.
The founders wrote the Constitution based on natural laws (God's laws.)They considered this a Christian nation, because the Constitution and laws were Biblically based. They did NOT consider that to be an establishment of religion--it was what they were. At the time of the first conventions to write the Declaration of Independence, all the states had requirements for serving in state govt/ which REQUIRED people who served to be of high moral repute, believe in Christian principles, and Holy scriptures.Many of the men meeting to write the Declaration and later the Constitution, actually wrote the state requirements. Yet, many peope today, especially lawyers agree with the "wall of separation" and have the nerve to say most of the men were Deists because a couple of them were. However, the Deists like Franklin still supported Christian principles, as can be seen from their own writings and actions of the times. The establishment clause meant not to establish the Baptist, Anglican, etc. as the true church.
In the 20th century, SC judges decided that their opinions must serve to move society forward progressively and that the Constitution must be "interpreted" progressively to fit the needs of society. At that time, the legislature failed to slap them down. The legislative branch was actually considered by the Founding Fathers to be the most important of the three branches because it is answerable to the people. The lazy fatheads in Washington (for the most part) either don't know or don't care.
When they took prayer out of the schools, the SC cited not one single precedent, as had always been the case in court opinions--because there was NOT ONE they could cite. They, since that time, they have cited the school prayer decision as "precedent" for further decisions against religion in the public square.
Sorry for the long rant, but this situation really upsets me.
vaudine
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.