Posted by Eugene Volokh:
Is Rep. Istook trying to overrule <i>Marbury v. Madison</i>:
Rep. Istook (R-Okla.), joined by 34 other Representatives, has
proposed the following bill, [1]HR 4892:
(a) IN GENERAL- Marriage in the United States shall consist only of
the union of a man and a woman.
(b) JURISDICTION-
(1) U.S. SUPREME COURT- The Supreme Court of the United States
shall have original jurisdiction to hear and determine a claim
arising under this section.
(2) OTHER COURTS- Except as provided in paragraph (1), no Federal
or State court shall have jurisdiction to hear or determine a claim
arising under this section.
What exactly is this supposed to do? First, if "claim arising" means
"legal right or constraint arising," then the law won't have any
effect on any normal federal or state litigation, since the court
hearing the litigation would lack jurisdiction to "determine a claim
arising under" the Istook law. So if such a law existed at the time of
the Massachusetts Goodridge litigation, and Massachusetts officials
said "Stop! Under subsection (a), we can't recognize same-sex
marriage," the Massachusetts Supreme Judicial Court would presumably
have just said "Well, but under subsection (b) we lack the
jurisdiction to hear your claim, so we just have to ignore it."
Second, if "claim arising" means "affirmative claim to relief
arising," so that it covers only a lawsuit saying "Based on subsection
(a), I want some same-sex marriage invalidated" rather than a defense
saying "Based on subsection (a), we need not recognize same-sex
marriages," then subsection (b) seems pointless: After all, the only
practical applications of subsection (a) are as defenses, not as
affirmative claims to relief (unless the whole point of the statute is
simply to empower someone to sue, in the U.S. Supreme Court, to have
someone else's same-sex marriage invalidated).
Third, how can the Supreme Court be given "original jurisdiction" to
hear these cases? Article III, section 2 provides that the Court shall
have original jurisdiction only in "Cases affecting Ambassadors, other
public Ministers and Consults, and those in which a State shall be
Party." The last category covers only (here I'm merging article III,
section 2 and the Eleventh Amendment) "Controversies between two or
more States," and where a State sues citizens of another State or
citizens of a foreign country. It's hard to imagine how a "claim
arising under" the Istook bill would practically fit into any of these
jurisdictional headings.
And if the bill is understood as adding to the Court's original
jurisdiction, that is a direct violation of Marbury v. Madison itself.
Marbury's broad holding is that the courts has the power and duty to
refuse to enforce unconstitutional laws -- but its narrower holding is
that a statute purporting to give the U.S. Supreme Court original
jurisdiction over suits not explicitly mentioned in the Constitution's
Original Jurisdiction Clause is unconstitutional. Hence the somewhat
facetious title of this post; while Rep. Istook may not be trying to
overrule Marbury's more famous holding, his bill seems to run squarely
in the face of Marbury's other holding (though I suspect that this is
an error on the drafters' part rather than an intentional attempt to
undo that narrow holding, which most people don't know).
Fourth, if Congress is trying to keep state courts from recognizing
same-sex marriages, I don't see where it gets the enumerated power to
do that. But that constitutional problem is so banal compared to the
much more interesting constitutional and interpretive problems I raise
that it's not even worth discussing . . . .
If this sounds confusing, I think that's just because the statute is
so awfully drafted. Or am I missing something?
References
1. http://www.house.gov/apps/list/press/ok05_istook/National_Marriage_Law.html
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