The U.S. House Judiciary subcommittee on the Constitution held its fourth hearing around the issue of gay marriage June 24. Its ostensive theme was limiting federal court jurisdiction to protect marriage for the states.
But attention was scant and that apparently made it safe to throw a bone to the far right and let them testify.
Vintage homophobe and retired California Congressman William Dannemeyer in his written testimony lamented, 'Decisions of the federal judiciary over the last half century [that] have resulted in the theft of our Judeo-Christian heritage.' Among them is enacting a wall of separation between church and state, banning nondenominational prayer from public schools, and removing the Ten Commandments from public school walls.
He called on Congress to 'recover what has been stolen' by removing certain areas of jurisprudence from the jurisdiction of the courts, as allowed by Article III of the Constitution. Naturally enough, that includes gay marriage.
Phyllis Schlafly, president of the Eagle Forum, assailed 'the very idea that unelected, unaccountable judges could nullify both branches of government and the will of the American people' by declaring the Defense of Marriage Act (DOMA) unconstitutional.
She too urged that Congress restrict the power of the judiciary to 'end the reign of judges legislating from the bench.'
The legal scholars who actually know something about the issue offered a very different take.
Northwestern University School of Law professor Martin H. Redish conceded that the Constitution does give Congress some power to limit the jurisdiction of the courts, but 'it is virtually impossible to say definitively what the outer limits of this congressional power actually are' because of 'the relatively limited case law that exists on the subject.'
He cautioned, 'Several guarantees contained in the Constitution—due process, separation of powers, and equal protection—may well impose limitations on the scope of congressional power.' And he feared that congressional attempts to rein in the courts 'would risk undermining public faith in both Congress and the federal courts.'
Michael J. Gerhardt, a professor at the William & Mary Law School, was even more blunt. 'Jurisdiction-stripping raises some profound questions of constitutional law ... . If Congress acts with the purpose and effect of violating a constitutional right, that violates the Constitution.'
'If Congress withdraws or restricts federal jurisdiction for a particular class of American citizens or based on the exercise of fundamental rights, that violates the Fifth Amendment. In short, Congress cannot use its power to restrict federal jurisdiction in ways that violate rights and equal protection, offends federalism, or infringes separation of powers.'
'Distrust of 'unelected judges' does not qualify as a legitimate basis, much less a compelling justification, for congressional action. 'Unelected judges,' in the form of our federal judiciary, are integral to protecting the rule of law in our legal system, balance of power among the branches, and protecting unpopular minorities from the tyranny of the majority.'
'Congress cannot vest jurisdiction in courts to enforce a law but prohibit it form considering the constitutionality of the law that it is enforcing.' Gerhardt used the example of the law criminalizing flag-burning, which the Supreme Court struck down as unconstitutional. Congress, in response, did not enact a law restricting the court from considering that issue, but rather it realized that its only recourse would be to enact a constitutional amendment. It has failed to do so.
Turning specifically to the issue of gay marriage, Gerhardt believes, 'A court analyzing whether a classification precluding a gay or lesbian citizen from petitioning any Article III court would probably conclude that such a restriction is no more rational than the classification struck down by the Supreme Court in Romer v. Evans,' the landmark 1996 gay-rights decision.
