Heated debate over a bill that would prevent federal courts from requiring states to recognize same-sex marriages ended with a showdown between two Wisconsin representatives. The bill passed the U.S. House, 233-194.
"Marriage is under attack," said Rep. James Sensenbrenner, R-Menomonee Falls. "To say that this is an attack on the foundations of government is just plain wrong."
But Rep. Tammy Baldwin, D-Madison, who led the Democratic opposition, sharply disagreed, calling the proposal "unnecessary, unconstitutional and unwise."
"We face no less than the specter of a sign posted on the courthouse door: 'You may not defend your constitutional rights in this court. You may not seek equal protection here,' " said Baldwin. "Today, the 'you' is gay and lesbian citizens. But who will be next?"
Both Baldwin and Sensenbrenner are graduates of the University of Wisconsin Law School. Sensenbrenner received his JD in 1968, so he's before my time. I've been here and teaching since 1984, and the subject I've been teaching the longest is Federal Jurisdiction, where one of the topics always is the scope of Congress's power to cut back the jurisdiction of federal courts and the focus of the study is always Congress's use of the power as a covert way to cut back on constitutional rights. A central question is whether having to assert your right in state court is equivalent to having less of a right. Are state courts as good as federal courts? So much been written on this complicated question that it has a one word name: "parity."
As a Federal Jurisdiction lawprof, it was nice to hear one of our graduates invoke the parity issue:
Opponents of the Marriage Protection Act "seem to think that state courts are second-class courts," said Sensenbrenner. He recalled his years as a law student in Madison and noted that the Dane County Courthouse is just a few blocks away from the statehouse. "Those judges are perfectly capable."
Hmm ... even he didn't assert a belief in parity. "Perfectly capable" doesn't mean "just as good" or "equally expert in the interpretation of the Constitution." Imagine if you were going in for surgery and had selected an excellent surgeon, then learned he would not be available, but that there was another surgeon who was "perfectly capable." You'd be alarmed, wouldn't you?
"We're doing nothing more than what the Supreme Court itself says is proper," added Sensenbrenner, who chairs the House Judiciary Committee.
Oh, there will be a few open questions to debate if Congress uses the jurisdiction cutback power specifically to control the meaning of a constitutional right, but there is a well-recognized argument that this power can be used as a check on the federal courts, even as a way to achieve a substantive end--cutting back constitutional rights--that could not be achieved directly short of a constitutional amendment.
"(This bill) is a terrible mistake," Baldwin said, wondering aloud whether Republicans would use similar tactics to prevent courts from ruling on other politically polarizing issues, including abortion and the Patriot Act.
"I suspect this is just the tip of the iceberg."
This argument tends to win in Congress. Even where members of Congress are unhappy with a particular court result (there was a failed attempt to cut back federal jurisdiction after the flag burning case), they get cold feet about cutting back jurisdiction, because their opponents call attention to its indirectness. If you can't do it directly, isn't it wrong to do it indirectly--even if, technically, you have the power? Maybe not, but when the issue is attacking constitutional rights (including rights that the federal courts have not yet articulated), it may look bad enough that a legislator may not want it on his record.
(I may write more on this later, but right now, I must dart off to Milwaukee again, for round 3 of the U.S. Bank Championship.)
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