Off the Court

We’ve been watching the wrong game.

With attention focused on the doomed constitutional amendment to ban same-sex marriage, the media, general public, and gay rights supporters are overlooking a more lively threat: H.R. 3313, the so-called Marriage Protection Act.

The constitutional amendment was merely an opportunity for conservative members of Congress to throw red meat to the base. Opponents of same-sex marriage knew the amendment wouldn’t pass, so they crafted a fallback plan: the Marriage Protection Act, which says federal courts may not hear cases from gay couples challenging the eight-year-old federal law that prohibits them from marrying. If the bill passes, many states will refuse to recognize the marriage of a gay couple hitched in another state. Under today’s rules, the couple could bring suit in federal court, asking that the Defense of Marriage Act, or DOMA, be ruled unconstitutional. If the Marriage Protection Act becomes law, no federal court could take the case.

Does that sound outlandish? Brace yourself for a primer on the anti-gay approach to constitutional law. The conservatives’ nightmare has long been that gay and lesbian couples will marry in Massachusetts or some other enlightened state, then be free to move anywhere and enjoy the state and federal benefits that accompany marriage. In 1996, they responded with DOMA, which declares that no state must recognize another state’s marriage of a same-sex couple.

DOMA amounts to an end-run around Article Four of the Constitution, which says that the public acts of each state (such as marriage licenses) must be honored in every state. Recognizing that DOMA is constitutionally vulnerable, to put it mildly, opponents of same-sex marriage now push the Marriage Protection Act. It solves DOMA’s constitutional infirmities the easy way, by saying that federal courts may not hear interstate cases involving DOMA, and thus cannot declare it unconstitutional. Even the U.S. Supreme Court would be shut out.

This effort to strip the federal courts of jurisdiction may itself be unconstitutional. The Constitution pointedly gives federal courts, especially the Supreme Court, the ability to unify federal law. It also gives federal judges life tenure to insulate them from public pressure. But if the Marriage Protection Act passes, DOMA’s fate would rest with state judges, many of whom face election and are prone to public pressure. Worse still, courts in some states would find DOMA unconstitutional while courts in other states would hold otherwise.

Supporters of the act point to Article Three of the Constitution, which says federal courts’ jurisdiction is subject to “such exceptions, and under such regulations as the Congress shall make.” Many legal scholars, however, argue that the “exceptions clause” was never intended to permit stripping all federal courts of authority to hear cases arising under the Constitution or federal law, especially where fundamental rights are concerned.

Regardless of the precise meaning of the exceptions clause, court-stripping threatens a fundamental constitutional principle: separation of powers. More than two centuries ago, Supreme Court Justice John Marshall declared it “emphatically the province and duty of the judicial department to say what the law is.” Federal judicial review safeguards against the tyranny of the majority that rightly concerned the framers.

If courts go too far, the American people can amend the Constitution. DOMA and the Marriage Protection Act are efforts to circumvent that process. They amount to an attempt to change the Constitution without amending it.

This is nothing new. In recent years, disgruntled members of Congress have introduced legislation to strip the courts of jurisdiction on various controversial issues, including abortion, busing, and school prayer. Typically, the bill effectively overrides a Court decision (for example, declaring that life begins at conception, in an effort to make abortion illegal) and then declares that some or all federal courts may not hear a case on this issue.

Fortunately, these attempts to short-circuit the Constitution have failed. If we start down the court-stripping road, there’s no telling where we’ll end up. Imagine if Congress had passed a law denying the Supreme Court jurisdiction over cases challenging the president’s authority to detain enemy combatants indefinitely. Our delicate constitutional balance will be upended if federal courts cannot prevent overreaching by the other branches.

The Marriage Protection Act is a double affront. Gays, who crave equal treatment in general, and the right to marry in particular, would obviously be harmed. The act should alarm not just them and their supporters but anyone concerned about the Constitution.

Alan Hirsch is a visiting professor of constitutional law at Williams College and senior consultant to the UCLA School of Law’s Williams Project on Sexual Orientation Law.