[Meneldil]

Marriage Protection Act of 2003:

To amend title 28, United States Code, to limit Federal court jurisdiction over questions under the Defense of Marriage Act.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Marriage Protection Act of 2003'.

SEC. 2. LIMITATION ON JURISDICTION.

(a) IN GENERAL- Chapter 99 of title 28, United States Code, is amended by adding at the end the following:

`Sec. 1632. Limitation on jurisdiction

`No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or determine any question pertaining to the interpretation of section 1738c of this title or of this section. Neither the Supreme Court nor any court created by Act of Congress shall have any appellate jurisdiction to hear or determine any question pertaining to the interpretation of section 7 of title 1.'.

(b) AMENDMENT TO TABLE OF SECTIONS- The table of sections at the beginning of chapter 99 of title 28, United States Code, is amended by adding at the end the following new item:

`1632. Limitation on jurisdiction.'.

What I would like to know is if it is actually constitutional to pass a law saying the SUPREME COURT does not have jurisdiction over a federal law. Has this been done before? Would you have to challenge the constitutionality of this law before you could challenge DOMA? I figured the population of this forum would be best for answering this question, even if I don't intend the topic to be political.

[Saddam H.]

It makes no sense. Someone could challenge the law, and then it would have to be reviewed by the courts.

It is not constitutional, IMO.

[Saddam H.]

And I wanna know what ****bag proposed this amendment.

[Lerkfish]

Originally posted by Saddam H.:
And I wanna know what ****bag proposed this amendment.

the religious right got together and then forced the republicans.

[Meneldil]

Sorry, I should have posted the link. Here it is.

http://thomas.loc.gov/cgi-bin/bdquer...:@@@L&summ2=m&

This isn't the Federal Marriage Amendment, this is just a law that's in committee at the same time. Though I doubt the amendment will pass, I bet a lot of legislators will use laws like this to fall back on.

"I didn't want to do something as drastic as amend the constitution, but I still voted against gay marriage..."

I just realized tonight that DOMA does this as well, albeit in more confusing language.

http://thomas.loc.gov/cgi-bin/bdquery/z?d104:h.r.03396:

This is just disgusting, in my opinion. Even if it'll never survive the court's scrutiny (probably why they want to pass another law attempting to prevent judicial review) the very idea of suspending a part of the Constitution to accomplish a goal with a law is repellent. At least amending the constitution is playing within the rules - this is just someone crying because the courts might spoil their plans and deciding to spit on the Constitution.

[Millennium]

Theoretically this could be done, because the concept of judicial review (which allows the courts to strike down laws as unconstitutional) has never actually been codified. It's a legal tradition in the US, but it's never appeared in any laws or in the Constitution itself.

However, the constitutionality of this law could still be attacked, and the constitutionality of both this and DOMA could be attacked simultaneously. So in the end this would really be only a very minor hurdle.

The only law which the courts cannot actually strike down as unconstitutional is the Constitution itself. This is most likely why some elements are pushing for this: the courts would not only be powerless to stop it but legally obligated to uphold it. This is probably just an attempt at a quick-fix move, owing to the fact that actual Constitutional amendments take a very long time to pass even in the best circumstances.

Political chess, yet again. It's a weak maneuver but they hope it will buy them a little time to get an amendment through. That is, of course, highly unlikely.

[Umbrella]

nope

[macvillage.net]

I'd bet, even if it passe during the Bush Administration, it would be revolked like the prohibition as soon as Bush is out.

[cpt kangarooski]

The short answer is that yes, this is constitutional, with a but.

Article III, � 2 of the Constitution sets out the original jurisdiction of the Supreme Court. It is very limited, and hardly anything ever goes to the Court originally. It also establishes that the Supreme Court will have appellate jurisdiction over all other cases that are within the federal judicial power. BUT, that appellate jurisdiction can be limited as Congress directs: "In all the other Cases before mentioned, 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."

The inferior federal courts, meanwhile, are totally subject to Congress, as it's up to them whether or not they'll even exist, much less what cases they can hear.

In such events, it falls to the states to interpret the Constitution.

And since this bill would deal with 28 USC 1738C, that's the federal DOMA which per Art. IV � 1 uses Congress' power to determine whether and how acts of states are enforcable in other states, it fairly effectively isolates same sex marriages to only being recognized in the states they're performed in, or in states that are willing to recognize them.

This would have interesting repercussions. Under the DOMA it would be entirely possible for Alice to marry Carol in a state that recognized same-sex marriages, and for her to then go to an opposite marriage only state, and marry Bob, without having (or in that state able) to get a divorce. The first state would be upset with Alice, but still consider her spouse to be Carol.

So in a way, the DOMA permits certain polygamous marriages to arise, I suppose. How ironic.

The 'but' however, is that all of Congress' powers are still circumscribed by the various amendments, particularly the Fifth and Fourteenth. But it would take fairly extreme circumstances, IMO, for the federal courts to decide that there was a due process violation sufficient enough to result in their determining whether or not they were constitutionally barred from hearing a case in the first place.

Millennium--

The only law which the courts cannot actually strike down as unconstitutional is the Constitution itself.

Hmm... I dunno. I think that even the Constitution may be subject to judicial review, but at that point the government would've basically irrevocably broken down anyway. The example I'm thinking of would be the response of the courts to, say, an amendment that required the execution of all persons with red hair. (no offense -- it's just what comes to mind) I don't think they'd let it stand, but the situation has never, and hopefully will never, arise.

[Meneldil]

Originally posted by cpt kangarooski:

And since this bill would deal with 28 USC 1738C, that's the federal DOMA which per Art. IV � 1 uses Congress' power to determine whether and how acts of states are enforcable in other states, it fairly effectively isolates same sex marriages to only being recognized in the states they're performed in, or in states that are willing to recognize them.

So the clause in DOMA which (as I read it) suspends full faith and credit is something Congress has the power to do? I still find it scary, but I still don't know if this is a once in a century kind of thing or a once every two years kind of thing.

The 'but' however, is that all of Congress' powers are still circumscribed by the various amendments, particularly the Fifth and Fourteenth. But it would take fairly extreme circumstances, IMO, for the federal courts to decide that there was a due process violation sufficient enough to result in their determining whether or not they were constitutionally barred from hearing a case in the first place.

Well, I don't know if you're a lawyer or not, but the argument sounds good. I'm still worried by the precedent, though. Does anyone know of other laws that did this?

[Lerkfish]

Originally posted by Lerkfish:
the religious right got together and then forced the republicans.

found the link

user: macnn
pass: macnn

of interest:

Last spring, the Rev. Donald E. Wildmon of Tupelo, Miss., decided to hold a summit meeting of the Christian conservative movement.

Mr. Wildmon felt the movement was losing the culture war, he recalled in an interview on Friday. Since plunging into political activism nearly 30 years ago, Christian conservatives had helped Republicans take control of Washington but did not have enough to show for it, Mr. Wildmon said. At the same time, the election of Republican politicians had drained some of the motivation out of its grass-roots constituents.

So Mr. Wildmon, founder of the American Family Association and a crusader against sex and violence in the media, sent an e-mail message inviting about two dozen other prominent Christian conservatives to a meeting in Arlington, Va., last June. About 14 people turned up with no set agenda, Mr. Wildmon recalled.

"All we knew was we were going to get together and see if there were some issues of concern that we could agree on and combine our efforts," Mr. Wildmon said.

"The first thing that popped up," he said, "was the federal marriage amendment."

and...

the same time, attracting new supporters and raising money had grown much more difficult since their b�te noire, Bill Clinton, left the White House, several Christian conservative activists involved in the Arlington meeting acknowledged. "Bill Clinton was a great motivator, and when he left there was a sense of `O.K., our guy is in the White House,' " said Gary L. Bauer, founder of the advocacy group American Values and an early ally in organizing the Arlington meeting.

But some in the movement believe opposition to gay marriage could make for even more effective direct mail � the financial lifeblood of most advocacy groups � than their other great cause, the fight against abortion. "Abortion has never been a strong direct-mailer," said Richard A. Viguerie, founder of American Target Advertising and the dean of conservative direct mail.

In the coming weeks, Mr. Viguerie said, his company expects to send out more than 10 million letters for a host of social conservative groups.

Several people at the Arlington meeting said their constituents were more concerned about gay marriage than about almost any other issue. "I have never seen anything that has energized and provoked our grass roots like this issue, including Roe v. Wade," said Richard Land, president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, which has 16 million members.

It is, as I had surmised, tossing a bone to the religious right voting bloc

[OldManMac]

The "religious" right, and many of "our representatives" no longer care whether anything they propose is constitutional; they only care that their agenda gets shoved down the entire nation's throat.

[Lerkfish]

Originally posted by KarlG:
The "religious" right, and many of "our representatives" no longer care whether anything they propose is constitutional; they only care that their agenda gets shoved down the entire nation's throat.

well, what I found especially disturbing is that this comes about because the Christian Coalition was having trouble fundraising, so they thought "HEY! lets discriminate against homosexuals!" because the abortion wedge issue was just not effective enough at fundraising.

It is just a way for the CC to get more money. It isn't even like they had a burning need to push the issue for its own sake, but because they felt it was a strong enough issue to motivate people to line their coffers......now that's sick.

[cpt kangarooski]

Meneldil--

Well, I don't know if you're a lawyer or not, but the argument sounds good.

No, I'm not a lawyer.

I'm still worried by the precedent, though. Does anyone know of other laws that did this?

Well, jurisdiction has been removed before. I can recall it happening during Reconstruction as well. But I don't recall any attacks on both federal and state jurisdiction simultaneously, which would be the most likely way of getting this sort of challenge to work, and isn't what this bill would do, either. Though it gets uncomfortably close.

[Meneldil]

Originally posted by cpt kangarooski:
Meneldil--


No, I'm not a lawyer.

Indeed, I just noticed your signature. Being clever today, I am.

Well, jurisdiction has been removed before. I can recall it happening during Reconstruction as well. But I don't recall any attacks on both federal and state jurisdiction simultaneously, which would be the most likely way of getting this sort of challenge to work, and isn't what this bill would do, either. Though it gets uncomfortably close.

Thanks for the pointer. I'll go look at that, and see what happened. Also must get on letter writing. Must remind them people are still watching, at least occasionally.

[OSX Abuser]

This law should of been proposed and passed when the Blacks started marrying our white women.

[Millennium]

Originally posted by KarlG:
The "religious" right, and many of "our representatives" no longer care whether anything they propose is constitutional; they only care that their agenda gets shoved down the entire nation's throat.

This is indeed true, but kindly remember that this happens on all sides of the equation, conservative, liberal, or otherwise.

[Lerkfish]

Originally posted by Millennium:
This is indeed true, but kindly remember that this happens on all sides of the equation, conservative, liberal, or otherwise.

I'm racking my brain trying to think of instances of this level -- proposing a constitutional amendment that restricts a person's right/non right to marry -- that has been proferred by the liberals. No dice.

Maybe you can help me out here with some examples?

[Millennium]

Originally posted by Lerkfish:
I'm racking my brain trying to think of instances of this level -- proposing a constitutional amendment that restricts a person's right/non right to marry -- that has been proferred by the liberals. No dice.

Maybe you can help me out here with some examples?

If you cannot immediately figure out what I'm talking about, then I doubt you would recognize the examples as such even if I gave them. Which is not something one can be blamed for, by any standard; most in the right wing don't recognize their own attempts to force their values on anyone else, either. That's part of the point I was trying to make. The problem with believing one side or the other to be Right is that you lose perspective.

[AKcrab]

Originally posted by Millennium:
If you cannot immediately figure out what I'm talking about, then I doubt you would recognize the examples as such even if I gave them.

I would appreciate some clarification. Your reply seemed to me like a veiled "you liberals are just as bad", but that doesn't really fit you...

[Lerkfish]

Originally posted by Millennium:
If you cannot immediately figure out what I'm talking about, then I doubt you would recognize the examples as such even if I gave them. Which is not something one can be blamed for, by any standard; most in the right wing don't recognize their own attempts to force their values on anyone else, either. That's part of the point I was trying to make. The problem with believing one side or the other to be Right is that you lose perspective.

then help out my perspective and provide some examples, please. Unless you have none, which I am beginning to suspect from this dodgy response.

[Evan_11]

Originally posted by Lerkfish:
then help out my perspective and provide some examples, please. Unless you have none, which I am beginning to suspect from this dodgy response.

Just like every post of yours.