MARRIAGE PROTECTION ACT--MAKING SENSE OF THE NONSENSICAL: Vikram David Amar

People of reason and good faith can disagree about the policy wisdom and/or constitutional imperative of recognizing same-sex marriages. But the way the issue is being dealt with these days on Capitol Hill is, well, pretty embarrassing.

Case in point: The passage - almost entirely along party lines -- by the House of Representatives on July 22 of a bill known as the "Marriage Protection Act (MPA)." The MPA is intended to bar federal courts from forcing a state to recognize same-sex marriages entered into in another state. But as drafted, it does nothing of the sort. Indeed, if enacted it might even lead to more interstate recognition of same-sex marriages. ...

The Marriage Protection Act purports to divest all federal courts--both lower federal courts and the Supreme Court--of the power to resolve any questions that may arise under DOMA. It was apparently motivated by distrust and fear of these courts--in particular, a fear that they will find DOMA to be unconstitutional.

Here is exactly what the MPA says:
No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C [that is, DOMA] or this section [that is, the MPA itself].

The bottom line: Federal courts can't even look at "any question pertaining to" DOMA or the MPA. ...

...People who want to use a federal court in one state to enforce a same-sex marriage arrangement entered into in another state won't be raising "any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C"--the phrase used by the MPA. Instead, proponents of out-of-state marriage recognition will be relying on section 1738--the generic provision that requires states to accord full faith and credit to other states--and on the Constitution itself.

For example, take a same-sex couple who married in Massachusetts and then moved to, say, California. The couple would file an action in federal court in California asking the federal court to order California state officials to honor the marriage, because the federal Constitution and 1738 require it.

It is the opponents of gay marriage recognition (in my hypothetical, the California state officials) who need to invoke section 1738C -- DOMA -- as a defense to an action based on section 1738 and the Constitution. But, ironically enough, the MPA will prevent a federal court from entertaining this defense based on DOMA, because that defense would raise a "question pertaining to the interpretation of" the DOMA. But the MPA doesn't prevent the federal court from hearing the rest of the case -- that part urged by the same-sex plaintiffs. So under the text of the bill persons seeking to enforce out-of-state same-sex marriages will have access to federal courts after all.

Notice, in this regard, that the bill ousts federal court jurisdiction over certain "questions"; it does not oust jurisdiction over "cases" in which one party might raise certain questions. An alternative way to draft the MPA might have been along the following lines: "Federal courts lack jurisdiction to hear any case in which a relevant and non-frivolous question concerning the meaning or validity of the DOMA is raised."

Better still -- if Congress really wanted to prevent a federal court from requiring a state to recognize an out-of-state same-sex union -- the MPA should have been written more like the DOMA itself, perhaps something like: "No federal court shall have jurisdiction to entertain a claim that federal full faith and credit principles require the recognition of a same-sex marriage." The way the MPA is written right now, focusing as it does on "questions" of the interpretation and validity of DOMA, the bill leaves the federal courthouse doors wide open.

But even if the House had been more artful in its drafting, the question arises, are opponents of gay marriage recognition well served by cutting federal courts out of the loop? In other words, let us suppose that Congress had effectively prevented all federal courts from dealing with full faith and credit cases in the context of same-sex marriage. Would that have made sense?

Not if you think the federal constitutional amendment urged by President Bush and supported by the most of the same House Republicans who passed the MPA makes any sense. That proposed federal constitutional amendment is premised on the notion that we need national uniformity on the question of same-sex marriage--that on a question this large we don't want to leave things to each of the separate states. And yet if (a more well-drafted version) of the MPA became law, then enforcement of the DOMA would be left entirely to each of the 50 state supreme courts. Some of these state supreme courts might uphold and implement the DOMA; others might invalidate the DOMA as violating the federal constitution. And the MPA would prevent the U.S. Supreme Court from stepping in to provide a national answer to the question whether the DOMA is constitutionally permissible. The disuniformity contemplated by the MPA is 180 degrees counter to the arguments in favor of national uniformity made by the same persons in the House concerning the proposed constitutional amendment.

And why are same-sex marriage opponents scared of federal courts -- as opposed to state courts -- anyway? The majority of the U.S. Supreme Court in Lawrence v. Texas made pretty clear that this Supreme Court -- which controls all federal courts and all courts on matters of federal law -- is not very anxious to mandate the recognition of same-sex marriage under the Fourteenth Amendment. And there is no evidence to suggest that this Supreme Court would likely be more activist with respect to the full faith and credit idea.

Indeed, the only courts so far to recognize the idea of same-sex marriage have been state Supreme Courts -- in Hawaii a few years back and in Massachusetts last year. And yet these state court judges are the persons in whom the MPA's proponents want to place the final word as to the meaning and the constitutional validity of the DOMA? What gives?

Regardless of one's views on the larger legal and social questions surrounding same-sex marriage, the carelessness and intellectual inconsistency exhibited in Congress should be troubling to everybody, even in a contentious Presidential election year.

more

posted by Eve at 12:09 AM | link

0 Comments:

Post a Comment

<< Home