Well, it sure didn’t take Hostettler long to pass his jurisdiction stripping bill, HR 3313 EH. The bill reads simply: “No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.” Naturally, Section 1738C is the DOMA provisions:
No State, territory, or possession of the United States, or
Indian tribe, shall be required to give effect to any public act,
record, or judicial proceeding of any other State, territory,
possession, or tribe respecting a relationship between persons of
the same sex that is treated as a marriage under the laws of such
other State, territory, possession, or tribe, or a right or claim
arising from such relationship.
So, in theory, HR 3313 EH would remove all jurisdiction from Article III courts in suits relating to same-sex marriage or the constitutionality of laws pertaining to it.
If I were a betting man, I’d say that the MPA won’t fly. The Senate may not pass it (in fact, Frist is being a bit coy about whether the bill will even be considered by the Senate). And even if the Senate passed it, the MPA itself could be ruled unconstitutional by the Court. Given the Court’s current stance on judicial supremacy, it’s unlikely that Rehnquist and others would allow Congress to eviscerate all methods of judicial review (see previous post).
So, if it won’t become law, MPA’s utility rests wholly in two factors: (1) creating the appearance of “progress towards victory” for the conservative right, presumably to bolster the electoral chances of Republican candidates and to “get out the vote” in conservative districts; (2) tying up Democrats from furthering their agenda by forcing Congressional Democrats to fight a defensive action.
The bigger issue, after MPA fails or is found unconstitutional, is the spirit of intolerance and desire to win at all costs displayed by the religious right. Not to mention a complete lack of respect for diversity. Republican Representative Steve Pearce, for example, is quoted in today’s Boston Globe saying that “gays and lesbians should be allowed to marry, but if they want to marry they will have to marry men and women.” Uh….right.
Maybe it’s just election year theatre, but maybe not. One suspects that the more radical faction of the conservative right couldn’t care less about maintaining separation of powers, and certainly doesn’t care about tolerance in a liberal democracy. And the Constitution itself seems to be OK, so long as they can use it to run the country in their own image. If it comes down to a conflict between the Constitution and their agenda, the radical right will stick to their goals, and to hell with the Constitution. And that’s where we need to draw the line….Thus far, and no farther. Mess with the basic forms of representative democracy and liberal society, and you’ve gone too far.