Article III: Can Congress prevent judicial oversight of gay marriage ban?

Great Debates
1

A couple weeks ago, I heard Pat Buchanan propose the use of Article III as a much neater solution for Congress to prevent court action mandating recognition of out-of-state gay marriage, rather than a constitutional amendment.

IANAL, but by my reading Patty boy seems to be correct.

Can Congress simply write off the ability of federal courts to review a gay marriage ban (at least for federal purposes), or a law preventing states from being required to recognize gay marriages in other states?

If so, why haven’t we heard more about this option?

2

Strictly speaking, the section you quoted only pertains to jurisdiction of the Supreme Court. If Congress were to withdraw jurisdiction of gay marriage issues from the Supreme Court, it would leave the issue to lower federal courts, and you would be more likely to get a pro-gay-marriage ruling from a lower court than from the Supreme Court.

Nevertheless, I believe the point is correct–as Article III Section 2 has been construed, Congress would be within its powers to withdraw jurisdiction of gay marriage issues from federal courts altogether.

Because it wouldn’t even come close to satisfying the demands of those who are proposing the constitutional amendment. The pro-amendment people not only want to prevent states from being required to honor other states’ marriages under the “full faith and credit” clause, they want to prevent state courts from construing their own state constitutions to require such marriages (or civil unions) in the first place.

If you withdraw jurisdiction from federal courts, that still leaves state courts free to require gay marriages within their own states, and even to require their states to honor other states’ marriages with no federal review.

Note: I support gay marriage personally; I’m only trying to explain why the Buchanan strategy won’t satisfy those who don’t.

3

There have been some earlier threads on using the “Exceptions Clause” as a way to get around judicial review of various pet causes of the Religious Right; see for example H.R. 3799…let’s take SCOTUS out of the Church/State debate… and Can Congress Outlaw the Courts? (which is specifically about applying this idea to the gay marriage debate).

4

Thanks for those links. A little tough to search for threads when you can’t use the words “gay” and “three.”

5

So, what happens if Congress passes a law that says the courts can’t overturn it, and the courts overturn it anyway? Congress could protest that the courts’ actions are unconstitutional, but the courts could simply rule that Congress’s actions were unconstitutional. At that point, there’s no further legal authority that can be appealed to. Does this mean the end of the Federal government?

6

“John Marshall has made his decision; now let him enforce it.”

7

Well, Congress can’t exactly enforce their decision either, can they? It was a President who uttered that quote, not a Congressman. Besides, things are a bit different now than they were then. There weren’t a lot of voters speaking up for the Cherokees, after all. If the 2004 election went to the Supreme Court and they ruled in favor of Kerry, would Bush really be able to say that today?

8

Hmm…

But would not a state somehow be a party in cases dealing with gay marriage? State A would sue to prevent the full faith and credit clause from forcing them to recognize gay marriages. Or someone would sue State A to try and force them to recognize their gay marriage.