Posted on 07/23/2004 12:07:42 PM PDT by Mr. Silverback
Note: This commentary was delivered by Prison Fellowship President Mark Earley.
A new front in the fight to protect traditional marriage recently opened on Capitol Hill. That front is H.R. 3313, introduced by Representative John Hostettler (R) of Indiana.
Hostettler’s proposal, if enacted, would be an important step in protecting marriage and in reining in a judiciary which is fast overruling the will of the people. It’s a measure that deserves our strong support.
Hostettler’s bill would prevent the federal appeals courts and the Supreme Court from hearing cases regarding the Defense of Marriage Act, commonly called DOMA. DOMA provides that no state shall be required to give effect to any other state’s “public act . . . [or] judicial proceeding” respecting same-sex “marriage.”
In other words, the idea of DOMA was to prevent same-sex couples from marrying in one state, moving to another state, and then demanding recognition of their union—something already being attempted around the country. DOMA prevents one state from imposing same-sex “marriage” on the rest.
None of this matters if a federal court declares DOMA unconstitutional. So, H.R. 3313 is designed to keep that from happening by stripping federal courts of jurisdiction in these matters. Congress can do this because the Constitution grants it the authority to limit the jurisdiction of the federal courts.
Predictably, some in Congress, like Jerrold Nadler (D) of New York, claim to be aghast at the idea. Nadler called the proposal “dangerous.” Perhaps Nadler should have a talk with his fellow Democrat, Senate Minority Leader Tom Daschle (D-S.Dak.). Two years ago, he got Congress to pass legislation that prevented the federal courts from hearing cases regarding logging in South Dakota’s Black Hills.
It is important that we support Hostettler’s bill for several reasons. First, the more ways that we are able to reinforce traditional marriage in the law, the better. Part of our task in defending traditional marriage is to educate the public. And the law is a powerful teacher.
Second, by forcing members of Congress to go on the record by voting on this issue, we are able to expose those who are vacillating or trying to have it both ways regarding same-sex “marriage.” If nothing else, we will have a clearer idea of who supports marriage as between one man and one woman and who does not. That’s an important thing to know.
Finally, we have to remember that persistence is the key to winning this struggle. There’s a valuable lesson to be learned here from the civil rights movement. Those on the legislative side of the movement kept introducing measure after measure on front after front. While the first few didn’t go anywhere, the goal was to keep the issue constantly before the Congress and the American people. This helped build the momentum that finally led to this important victory.
Similarly, we’re not going to win this battle by simply concentrating on one strategy or one bill. To win, we’re going to need a series of bills that keep the issue at the forefront of public life.
And that’s why it’s important to support H.R. 3313. Not only does it have the potential to rein in the judiciary, but it also demonstrates that the fight to preserve marriage and, thereby, the family is far from over.
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But, let's say New York's high court decides that NY should recognize Massachusetts unions because the U.S. Constitution's Full Faith and Credit clause trumps the federal DOMA. Do they become the final word on that? I am not clear that this is good. Even if NYers change their state constitution, couldn't the state court, being the final authority on the US Constitution on this subject, just decide that the fed. Constitution trumps the state constitution?
I agree that we should support this idea. We should fight this war on all fronts just like the other side does. I just hope it will help.
HR 3313 should prevent that.
This definitely looks like another throwaway law, done only for posturing because it will be declared unconstitutional. Our congresscritters are paid too much, because they obviously don't have enough work to do. I doubt Congress could get away with saying SCOTUS can't hear it, as that would overturn most cases decided since Marbury v. Madison.
These congressmen are idiots that need to be reigned in. They must be so full of themselves to think that they can override Article IV, Section 1 by mere legislation. I don't care about the DOMA, I care about bad precedent. How about a later Congress decides that no state can recognize another state's CCW law, blowing away all reciprocity agreements? The horrible possibilities are endless.
But then you may think that the Constitution entitles Congress to except this kind of thing from review by the courts. True, they can set appellate jurisdiction, but IAW Article III, Sec. 2, SCOTUS has original jurisdiction in suits against states, and all it would take is for a couple married in MA to move to Illinois and sue to recognize their marriage. That would be the wedge to bring the issue directly to SCOTUS.
Why don't you call your Congresscritter and suggest that?
How about starting with the removal of the SC judges in Mass so very responsible for the gay marriage issue
See http://www.article8.org/
They are trying hard and they need help.
Why do we have laws against child porn?
For the same reason we have laws against tying you up with duct tape and cutting random body parts off for fun.
Oh, and just for clarification, are you saying we shouldn't have such laws? Are you saying the government has no right to ban child porn?
That's when conservatives will beg Congress to repeal the law. That's why this law is so stupid--it'll backfire for sure.
No, I'm asking you why we have laws against child porn.
Man, ordinarily I'm in favor of smaller government too, but child porno laws exist for the same reason as child molestation laws.
It's sick.
Do you mean to say they exist because children are hurt?
There is a lesbian couple trying just that in Florida - they are suing in federal court. The bill being referenced here is designed to stop that.
Even if my scenerio happened, we would not be WORSE off. We would just be back in the place where we need a U.S. Constitutional Amendment. And at least the liberals would need to win in every state.
Of course, most states have the same phrases in their constitutions as the federal constituiton about equal protection and due process (the standard gay argument). Any court that desires to impose gay marriage on their state can just rule it valid in their state constitution. The DOMA didn't stop the Massachusetts court from doing it. They cited Lawrence and other federal rulings as well as state law and rulings. Perhaps my fear is irrelevant. Judges who want to legislate will do so regardless. Taking the federal courts out of the legislating business is at least a move in the right direction.
You are wrong.
Congress has already taken Jurisdiction away from Federal Courts before on certain issues.
Tom Daschle recently pushed one through: Public Law 107-206, Sec. 706(j), states: “Any action authorized by this section shall not be subject to judicial review by any court of the United States.” The law authorized the Interior Department to clear timber in the Black Hills of South Dakota in order to fight and prevent forest fires. Environmental groups had filed several lawsuits to stop timber clearing. At least one court had issued an order and other suits were pending. The Daschle law terminated all these suits so that timber clearing could continue without judicial interference.
The Case law supporting Congress's right to do this (not to mention that it is also in the Constitution) is rather extensive.
In Turner v. Bank of North America (1799), Justice Chase commented: “The notion has frequently been entertained, that the federal courts derive their judicial power immediately from the Constitution; but the political truth is, that the disposal of the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the power to this Court, we possess it, not otherwise: and if Congress has not given the power to us, or to any other Court, it still remains at the legislative disposal.”
In Ex parte Bollman (1807), Marshall said that “courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.”
In U.S. v. Hudson & Goodwin (1812), “the power to limit jurisdiction of those Courts to particular objects.” The Court stated, “All other Courts [except the Supreme Court] created by the general Government possess no jurisdiction but what is given them by the power that creates them.”
The Supreme Court held unanimously in Sheldon v. Sill (1850) that because the Constitution did not create inferior federal courts but rather authorized Congress to create them, Congress was also empowered to define their jurisdiction and to withhold jurisdiction of any of the enumerated cases and controversies. This case has been cited and reaffirmed numerous times. It was applied in the Voting Rights Act of 1965, in which Congress required covered states that wished to be relieved of coverage to bring their actions in the District Court for the District of Columbia.
The Supreme Court broadly upheld Congress’s constitutional power to define the limitations of the Supreme Court “with such Exceptions, and under such Regulations as the Congress shall make” in Ex parte McCardle (1869). Congress had enacted a provision repealing the act that authorized the appeal McCardle had taken. Although the Court had already heard argument on the merits, it dismissed the case for want of jurisdiction: “We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.”
In 1948 Justice Frankfurter commented: “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice [already before the court].”
In The Francis Wright (1882), the Court said: “While the appellate power of this court under the Constitution extends to all cases within the judicial power of the United States, actual jurisdiction under the power is confined within such limits as Congress sees fit to prescribe. . . . What those powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control. . . . Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to re-examination and review, while others are not.”
Numerous restrictions on the exercise of appellate jurisdiction have been upheld. For example, Congress for a hundred years did not allow a right of appeal to the Supreme Court in criminal cases except upon a certification of divided circuit courts.
In 1932 Congress passed the Norris-LaGuardia Act removing jurisdiction of laws regarding labor strikes from the federal courts, and the Supreme Court had no difficulty in upholding it in Lauf v. E. G. Shinner & Co. (1938). The Supreme Court declared, “There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States.”
Congress followed the same procedure when they passed the Hiram Johnson Acts in order to remove jurisdiction from the federal courts over public utility rates and state tax rates. These laws worked well and no one has suggested they be repealed.
In Lockerty v. Phillips (1943), the Supreme Court held that Congress has the power of “withholding jurisdiction from them [the federal courts] in the exact degrees and character which to Congress may seem proper for the public good.”
After the Supreme Court ruled In Tennessee Coal v. Muscoda (1944) that employers had to pay retroactive wages for coal miners’ underground travel to and from their work station, Congress passed the Portal-to-Portal Act of 1947 prohibiting any court from enforcing such liability.
Even one of the leading judicial activists, Justice William Brennan, acknowledged Congress’s constitutional power to limit the jurisdiction of the federal courts. In 1982 he wrote for the Court in Northern Pipeline Construction Co. v. Marathon Pipe Line Co.: “Of course, virtually all matters that might be heard in Art. III courts could also be left by Congress to state courts [and] the principle of separation of powers is not threatened by leaving the adjudication of federal disputes to such judges.”
In 1999 the Supreme Court upheld Congress’s power to restrict the jurisdiction of the federal courts to interfere in certain immigration disputes (Reno v. American-Arab Anti-Discrimination Committee). In 2003 the Supreme Court upheld a 1996 law signed by President Clinton that gave exclusive authority to the U.S. Attorney General to deport certain illegal aliens and specified that federal courts have no jurisdiction to review such removal orders (Hatami v. Ridge).
Another statute that prohibits judicial review is the Medicare law, on which nearly everyone over age 65 relies for health care. Congress mandated that “there shall be no administrative or judicial review” of administrative decisions about many aspects of the Medicare payment system. When someone sued in federal court anyway, the court dismissed the lawsuit based on this prohibition of judicial review (American Society of Dermatology v. Shalala, 1996). In Lockerty v. Phillips (1943) The Supreme Court made clear: “All federal courts, other than the Supreme Court, derive their jurisdiction wholly from the exercise of the authority to ‘ordain and establish’ inferior courts, conferred on Congress by Article III, 1, of the Constitution. Article III left Congress free to establish inferior federal courts or not as it thought appropriate. It could have declined to create any such courts, leaving suitors to the remedies afforded by state courts, with such appellate review by this Court as Congress might prescribe. . . . The Congressional power to ordain and establish inferior courts includes the power ‘of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.’”
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