Gender, Sexuality & Law: Protecting Marriage by/from Law
Harper Jean Tobin
Contributing writer
In all the hubbub over the failed
Federal Marriage Amendment (FMA) this
summer, you might have missed another piece of legislation aimed at shoring up
our nation’s bans
on same-sex marriage. It may end up going the way of the FMA, but it may tell
us a lot about what is at stake in the nation’s debate on marriage.
Passed in the House of
Representatives just a week after the FMA failed in the Senate, the Marriage
Protection Act (MPA) would attempt to
remove federal courts’
jurisdiction to consider the constitutionality of 1996’s Defense of Marriage Act (DOMA).
Alright, this is getting confusing.
It’s easy to get
mixed up between the DOMA, the FMA, and the MPA. And that’s not even mentioning 39 state
versions of DOMA, a handful of state constitutional amendments, and over a dozen potential state amendments in the works.
With all this going on, it’s no
wonder some folks don’t
realize that same-sex marriage has only ever been allowed in one
state.
So, let’s break it down:
The federal DOMA stated that (a),
under federal law, marriage was only for heterosexual couples, and (b) states
need not recognize same-sex marriages from other states. There were and are
concerns that part (a) may violate the 14th Amendment, and that part
(b) may violate the Constitution’s Full Faith and Credit Clause.
While legal strategists for
gay-rights groups have so far deemed it imprudent to challenge DOMA, same-sex
marriage opponents weren’t
taking any chances, thus the proposed FMA. This would have placed a
heterosexual-only definition of marriage in the Constitution itself.
The Marriage Protection Act
represents a different approach: instead of changing the Constitution to allow
DOMA, it seeks to prevent courts from finding it unconstitutional. Is
stripping federal courts’
jurisdiction over a particular law - and particularly over questions of a law’s constitutionality -
constitutional?
In the past,legislators have proposed removing from judicial
review issues such as school segregation, abortion rights, and school prayer.
But these measures have failed. “Court-stripping” opponents call it an unprecedented attack on 200
years of constitutional
process. Supporters say it is neither unprecedented nor unconstitutional.
My cursory research pointed to a
few instances where laws with “court-stripping” provisions have been approved by
Congress, including recent laws denying illegal immigrants the right to appeal
deportation orders in certain cases. In a suit challenging one of those laws in
2001, the Supreme Court declined to challenge “court-stripping” directly, while admitting that
denying judicial review may “raise
serious constitutional questions.” The Court granted the plaintiffs relief on other
grounds. (The case is Calcano-Martinez, et al. v. INS.)
But back to the marriage issue and
the MPA. Supposing that the law was constitutional, only state courts could
consider DOMA’s
constitutionality, leading to a patchwork of decisions on a federal issue -
without the Supreme Court as a final arbiter. Isn’t this the kind of “legal chaos” the DOMA was meant to avoid?
More to the point, isn’t it the judiciary’s just and long-recognized role to
protect the Constitution and strike down laws which violate it? Not necessarily, in the view of the sponsors of another House Bill,
called the Congressional Accountability for Judicial Activism Act. This bill
aims to enable Congress override Supreme Court decisions the same way it
overrides presidential vetoes. Its twenty-odd supporters contend that
judicial review is an illegitimate prerogative made up by the Supreme Court two
centuries ago.
Whether you believe that judicial
review was made up by the Court, or was properly inferred from the Constitution
and the Federalist papers, it’s fair
to wonder where we would be today without it. Much to the relief of law professors
and authors of law textbooks, we won’t be seeing such a complete re-writing of constitutional law anytime soon: this Act is unlikely to make it out of
committee. Likewise, the Marriage Protection Act may never see the Senate floor. Which leaves those activist judges free to arrive at whatever nutty
conclusions they like about the (un)constitutionality of DOMA.