The Republican’s plan to exploit the so-called Federal Marriage Amendment obviously failed miserably yesterday. The scary part, however, is what the GOP wants to do next.
I expected the usual suspects to note that constitutional amendments rarely succeed after their first attempt and that proponents will continue to fight for this as long as necessary. Fine; that’s predictable rhetoric that doesn’t mean anything.
Unfortunately, the right is not made up of gracious losers. They can’t have the FMA, so they’re considering yet another “court stripping” measure.
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.
If you’re a long-time reader of mine, you know that I find court stripping uniquely offensive to the American system of government. And if you’re wondering if I’m about to go on the exact same tirade I went on the last time the issue came up, the answer is a resounding “yes.”
Court stripping is a radical scheme that’s become increasingly popular with the far-right. The idea behind it is simple: when Congress decides it doesn’t like the way courts are ruling on certain types of cases, lawmakers feel it is within their power to take away the courts’ power to even hear these cases.
You may have learned in junior high civics class about “separation of powers,” a principle that gives the legislative branch the authority to write the laws, the executive branch the power to execute the laws, and the judicial branch the power to interpret the laws. Under court-stripping schemes, however, Congress would shuffle those responsibilities a bit, giving the legislative branch increased judicial power over courts. It turns the very idea of an “independent” judiciary on its head.
It’s irresponsible for lawmakers to even consider such reckless and unconstitutional scheme, but as of yesterday, House Republicans, including their leader, boasted that we should expect to see more of this lunacy in the future.
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 example, he will push legislation to stop federal courts from hearing lawsuits related to the words “under God” in the Pledge of Allegiance.
This is the kind of scheme that exists on the furthest fringes of the law and invites a constitutional crisis. Imagine what happens if Congress takes away an area of the courts’ jurisdiction, but the courts continue to believe they can interpret the law and rule on these cases anyway. Who gets to decide? Who has the ultimate authority to rule on these questions? This is exactly why separation of powers was created in the first place.
Alas, some of Congress’ most conservative members have flirted with this nonsense for years. On multiple occasions in the 1980s, for example, Sen. Jesse Helms tried repeatedly to remove the ability of the federal courts to hear school prayer cases. Fortunately, his efforts were always defeated.
More recently, congressional Republicans like DeLay, Bob Aderholt (Ala.), and Zell Miller (Ga.) have recommended extending the scheme so that courts couldn’t consider any church-state cases at all, leaving government free to promote and endorse religion constantly.
To understand just how radical this notion is, consider that Aderholt was on Pat Robertson’s “700 Club” program a few years ago and argued that the Supreme Court should not always be the final arbiter of the Constitution. Aderholt said:
“[O]ver several decades, there has been a view that the United States Supreme Court has the final authority [on interpreting the Constitution]…. And it would be our argument, we would make the argument, the Supreme Court does not always have the final authority over the interpretation of the Constitution.”
Believe it or not, this guy went to law school.
I should note that Congress has always resisted court-stripping schemes and not one has ever been passed into law. Still, it’s scary that so many lawmakers, who must know better, would push such a radical approach.