The Washington Post had an interesting item today about developments in Congress regarding the so-called Federal Marriage Amendment. In particular, I was struck by a vague description of a counter-proposal Sen. Orrin Hatch (R-Utah) might bring forward.
The Post noted that the Senate Judiciary Committee held a “contentious” hearing yesterday on the general question of whether to amend the Constitution on marriage. Hatch, who chairs the committee and sort-of endorsed the Musgrave Amendment last week, suggested that he has an idea of his own about how to “protect” the traditional definition of marriage.
In a sign that the constitutional amendment endorsed by President Bush may be running into trouble on Capitol Hill, the Judiciary Committee’s chairman, Orrin G. Hatch (R-Utah), is preparing to introduce wording that would leave the definition of marriage up to the states.
Congressional aides said that Hatch, while vowing to support the version of the amendment favored by Bush, has drafted language to appeal to conservatives concerned that Bush’s version would intrude on states’ responsibilities.
[…]
Hatch’s proposal would allow each state legislature to define marriage as it chooses and to decide whether to recognize the standards of marriage allowed in other states.
Hatch hinted at his plans during yesterday’s hearing. “The Musgrave/Allard text, which I support and will vote for, should be seriously considered,” he said in a written statement. “I think it would also be prudent if we look at approaches which keep the courts from forcing its definition of marriage on states, and instead let the legislatures and the citizens decide for themselves what is best for them.”
The Post article makes it sound like some kind of compromise between the FMA and inaction. To me, it sounds like another court stripping measure.
From the outset, let me admit that I have not yet seen the details of the Hatch proposal. As far as I can tell, it hasn’t been released to the public and hasn’t been formally introduced as legislation. In fact, there isn’t a word about it on Hatch’s own website.
But taking Hatch’s comments yesterday at face value, his plan seems to center around “keep[ing] the courts from forcing its definition of marriage on states.”
Well, what in the world does that mean? How, exactly, could Congress pass legislation that would limit courts’ ability in this area?
The only thing I can think of is court-stripping, which as regular readers of mine know, is a continuing source of frustration for me.
As I’ve mentioned before, 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 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.
The tactic practically invites a constitutional crisis. Imagine what happens if Congress takes away an area of courts’ jurisdiction, but the courts understandably decide they can 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.
Nevertheless, conservatives have flirted with this for years. On multiple occasions in the 1980s, for example, Sen. Jesse Helms (Maniac-N.C.) 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 Tom DeLay (Texas), 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, who actually went to law school, 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.”
With this in mind, Hatch’s possible court-stripping move warrants close attention. Conservatives who want to stop gay marriages but are cautious about a constitutional amendment may find Hatch’s proposal an attractive alternative, especially since most people don’t fully appreciate the extremism of court-stripping anyway.
And if anyone actually has a copy of Hatch’s plan, please let me know.