Wasn’t just a week or two ago that GOP lawmakers in Congress were trying to impose a one-size-fits-all Constitutional amendment against gay marriage, to quash even states from allowing such laws? Wasn’t it just a week or two ago that Democratic lawmakers were crying out that the states are best suited to make such decisions?
Well, that was a week or two ago, and now the Marriage Protection Act — which would remove the Defense of Marriage Act from federal court review — has the two sides flip-flopped again.
Rep. John Hostettler, R-Ind., author of the bill, said the issue is too important to ignore. “Simply put, if federal courts don’t have jurisdiction over marriage issues, they can’t hear them. And if they can’t hear cases regarding marriage policy, they can’t redefine this sacred institution,” Hostettler said when he introduced the legislation in May.
and
While Republicans defended states’ rights, Democrats said the phrase recalled Southern opposition to desegregation, which was propelled by a series of federal court rulings.
That’s closer to the usual alignment, but in point of fact both sides have shown they’re more than willing to depend on Federal law and courts to impose support positions they believe in but that the states have not yet fallen in line behind.
As to the law itself, it depends on a very rarely used clause of the Constitution itself, Article III, Section 2, Clause 2 (emphasis mine):
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned [in Clause 1], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Which means it’s probably constitutional, from what I understand, but it strikes me as a pretty bad idea. Congress passing laws and preventing judicial oversight of them strikes me as a dangerous precedent — one as likely to bite any ideological stripe of Congresscritter depending on who’s in the majority. As one observer on the radio noted this morning, “What if a Democratic Congress passes a major gun control bill and adds that the federal courts can’t review it against the Second Amendment?”
Some folks might consider that a blessing against the tyranny of the judiciary. It seems like an opening for a crazyquilt of extra-constitutional laws to me.
Canada has a similar clause in its constitution. Since 1982, both the federal and provincial governments can invoke the Notwithstanding clause to override the Charter of Rights and Freedoms. The clause is renewable every five years.
The federal government has never used the clause. I believe only Quebec has used the clause once, to find a compromise for some highly controversial language laws, but it was never used by the various separatist governments.
And yet, for all that it’s not used, the clause was a key element in the federal-provincial negotiations for the patriation of the Constitution.
It’s fallen into disuse, along with such federal powers as the right to review and/or disallow any provincial legislation.
During the recent Canadian elections, some members of the newly-minted Conservative Party (which would, in comparison to the US scale, still be pretty darn liberal) said they would invoke the Notwithstanding clause on social issues such as banning gay marriage or restricting abortion. This shocked a good portion of the electorate, and the Conservatives failed to win the election.