Precinct 333

Saturday, July 24, 2004

NYTimes -- Exercise of Constitutional Power Undermines Constitution!

The House of Representatives has passed legislation removing cases involving gay marriage from the jurisdiction of the federal courts. This, opines the editorial staff of the New York Times, is "an outrage," and threatens the rights of every member of any minority group. They also go to great lengths to associate the action with racist Democrats during the civil rights era (though they do not, to be sure, note that the opponents of civil rights were Democrats).

What they do not say is that the move is unconstitutional. It is not. The relevant case is Ex Parte McCardle, 74 US (7 Wall.) 506 (1869). In it, the Supreme Court explicitly acknowledged the ability of the Congress to limit the appellate jurisdiction of the Supreme Court (and of the complete jurisdiction of the lower federal courts). For a substantive analysis of the case and the validity of such an exclusion, consider this article by William W. Van Alstyne in the Arizona Law Review (15 Ariz. L. Rev. 229 (1973)).

What would be the outcome? Each state court system could decide on the matter of the constitutionality of the federal DOMA and the legality of homosexual marriage (and validity of those performed in another state) within its borders, but there would be no national precedent. This would provide what advocates of homosexual marriage claim they support: that no state will be forced to accept homosexual marriages in defiance of its own laws. Why, then, are advocates for homosexual marriage so outraged that Congress is acting to guarantee what they have said they support? Could it be that this reveals their real agenda -- forced recognition of homosexual marriage everywhere via the decision of a handful of unelected judges, despite the opposition of the majority of Americans?


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