WalterM140
July 22nd 04, 04:54 PM
Muzzling the Courts?
The Washington Post
Wednesday, July 21, 2004; Page A18
FOLLOWING THE Senate's burial last week of a proposed constitutional
amendment to ban gay marriage, foes of same-sex marriage are back with
another radical proposal. This time they are pushing a bill that would
prevent federal courts from hearing challenges to a federal law that
limits gay marriage. The bill, scheduled for a vote tomorrow, is an
attack on the basic function of the courts in American society. Making
this attack all the more ominous is House Majority Leader Tom DeLay's
stated intention to promote similar bills to bar court challenges to
the Pledge of Allegiance and, potentially, on other social issues.
This is as wrong as wrong can be. The House should not strip courts of
their authority in order to protect bad policy -- or even good policy
-- from constitutional scrutiny.
At its broadest level, the debate over gay rights -- and marriage
rights particularly -- is a debate over whether discrimination
according to sexual orientation is a civil rights issue. Gay marriage
is, at one level, a policy question, but it also presents legal
issues: Must marriage rights, under state or federal laws, apply
equally to partners of the same gender? The federal Defense of
Marriage Act says that no state can be forced to recognize gay
marriages performed in another state. An inevitable question after
Massachusetts legalized same-sex marriage is whether this federal law
can withstand constitutional scrutiny. The new bill would prevent the
courts from answering that question -- effectively shutting them out
of the debate over gay marriage and permitting Congress to act as it
pleases, whatever the Constitution may say.
Just how far Congress can go in preventing judicial consideration of
its actions is a thorny constitutional question. But even if Congress
were to have it within its power to enact this law, it should refrain.
Considering the constitutional validity of congressional enactments is
a central function of the federal judiciary. Congress should not be in
the business of obstructing that. Congress has considered stripping
the courts of jurisdiction over abortion and other polarizing issues,
but it has stopped short of testing its own power to block judicial
review of constitutional questions. In their zeal to stop gay
weddings, legislators shouldn't drive off the cliff this time either.
© 2004 The Washington Post Company
[end]
"The federal Defense of Marriage Act says that no state can be forced
to recognize gay marriages performed in another state."
Of course there is a very clear clause in the Constitution that says
that the state laws enacted in one state are valid in all states.
That is why Maryland has to honor your drivers' license, or divorce,
or marriage. But who cares what the Framers thought? Who cares what
has worked for 225 years?
This is completely loony. And the Brethren won't like it. Like a lot
of conservatives, the ones on the Supreme Court have been folded,
spindled and mutilated.
"Anybody but Bush" is an imperative.
Walt
The Washington Post
Wednesday, July 21, 2004; Page A18
FOLLOWING THE Senate's burial last week of a proposed constitutional
amendment to ban gay marriage, foes of same-sex marriage are back with
another radical proposal. This time they are pushing a bill that would
prevent federal courts from hearing challenges to a federal law that
limits gay marriage. The bill, scheduled for a vote tomorrow, is an
attack on the basic function of the courts in American society. Making
this attack all the more ominous is House Majority Leader Tom DeLay's
stated intention to promote similar bills to bar court challenges to
the Pledge of Allegiance and, potentially, on other social issues.
This is as wrong as wrong can be. The House should not strip courts of
their authority in order to protect bad policy -- or even good policy
-- from constitutional scrutiny.
At its broadest level, the debate over gay rights -- and marriage
rights particularly -- is a debate over whether discrimination
according to sexual orientation is a civil rights issue. Gay marriage
is, at one level, a policy question, but it also presents legal
issues: Must marriage rights, under state or federal laws, apply
equally to partners of the same gender? The federal Defense of
Marriage Act says that no state can be forced to recognize gay
marriages performed in another state. An inevitable question after
Massachusetts legalized same-sex marriage is whether this federal law
can withstand constitutional scrutiny. The new bill would prevent the
courts from answering that question -- effectively shutting them out
of the debate over gay marriage and permitting Congress to act as it
pleases, whatever the Constitution may say.
Just how far Congress can go in preventing judicial consideration of
its actions is a thorny constitutional question. But even if Congress
were to have it within its power to enact this law, it should refrain.
Considering the constitutional validity of congressional enactments is
a central function of the federal judiciary. Congress should not be in
the business of obstructing that. Congress has considered stripping
the courts of jurisdiction over abortion and other polarizing issues,
but it has stopped short of testing its own power to block judicial
review of constitutional questions. In their zeal to stop gay
weddings, legislators shouldn't drive off the cliff this time either.
© 2004 The Washington Post Company
[end]
"The federal Defense of Marriage Act says that no state can be forced
to recognize gay marriages performed in another state."
Of course there is a very clear clause in the Constitution that says
that the state laws enacted in one state are valid in all states.
That is why Maryland has to honor your drivers' license, or divorce,
or marriage. But who cares what the Framers thought? Who cares what
has worked for 225 years?
This is completely loony. And the Brethren won't like it. Like a lot
of conservatives, the ones on the Supreme Court have been folded,
spindled and mutilated.
"Anybody but Bush" is an imperative.
Walt