Saturday, July 24, 2004

House bill strips federal courts of jurisdiction in same-sex marriage cases 

When at first you don't succeed, do an end run and strip the federal courts of the power to protect a minority's civil rights.

And that's precisely what the House Republicans did last week in passing the so-called Marriage Protection Act, which prohibits the federal courts, including the US Supreme Court, from deciding whether a state must recognize a same-sex marriage legalized in another state.

This goes beyond President Clinton's stupidity in pandering to Christian zealots by signing the Defense of Marriage Act, defining marriage as a union between one man and one woman, to the very essence of what the Bill of Rights is all about: protecting the minority from the tyranny of the majority.

What has these tyrannical religious zealots' panties in a wad over same-sex marriage is beyond me. Nor can they explain how a loving same-sex married couple living next door to them is going to have a deleterious effect on a heterosexual couple's marriage. Of course, not too long ago, their predecessors fought against legalizing interracial marriage, with the same arguments that the republic would collapse if people of different races married.

For once, The New York Times got it right: “This radical approach would allow Congress to revoke the courts' ability to guard constitutional freedoms of all kinds. And although gays are the subject of this bill, other minority groups could easily find themselves the target of future ones.”

While some legal scholars agree with the bill's author, Representative John Hostettler (R-Ind.), that Congress has the power, under Article III of the Constitution, to strip the courts of their jurisdiction in this and other matters that strike their fancy, I don't read it that way, especially when it comes to the Supreme Court. Yes, the Constitution gives Congress the power to establish “inferior courts,” but nowhere can I find where it is given the power to prohibit the lower courts or the Supreme Court from adjudicating cases that arise under the Constitution.

Republicans have a habit of setting up slippery slopes, which they often are the first to slide down, such as the amendment limiting presidents to two terms. The presidential term limit amendment came about when they got their knickers in a twist over Roosevelt winning four terms. It came back to bite them when Eisenhower could not run for a third term, had he chosen to do so, nor could their darling Reagan.

Now what if a Democratic majority in Congress passed a bill stripping the Supreme Court of its jurisdiction to decide the victor in a close or stolen election? Surely, the Republicans would go for that, yes? Or might they be too busy peering into bedrooms to notice?

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