HR3313: Constitutional Theories from the Blogosphere.
| July 29th, 2004I’m obviously fascinated by the subject of HR3313. The act is novel, and may or may not be constitutional. I was planning to re-post again when I’d accumulated a sufficient number of opinions. I am prompted to post by acomment by none other than Maggie Gallagher, a vociferous opponent of same sex marriage.
Maggie Gallagher suggests the law is likely is unconstitutional and would fail to block same sex marriage:
If her diagnosis is correct, opponents are wasting their time pushing the bill. That is, they are wasting their time if their purpose is to enact a law that will prevent same sex marriage. Ampersand and others have suggested introducing this bill is a political ploy.
Focusing on the law itself, questions seem to fall into two groups: Is the law constitutional? If constitutional, what are the effects of such a law?
At least two law professors have expressed their opinion on the internet. One leans toward “likely constitutional”, the other towards “likely unconstitutional”.
Joanna Grossman writing for FindLaw suggest HR3313 is unconstitutional. In her closing paragraphs, she summarize her argument:
Joanna Grossman also discusses the debate over the constitutionality of DOMA itself.
Eugene Volokh, who emphasizes HR3313 does not fall under his area of expertise, suggest the law is likely constitutional, but warns:
In matters of law, one generally suspects law professors, particularly those specializing in the matter at hand, likely know more than other people. However, other people like to express their opinions; it’s fun to read those too. (I will try to indicate the legal credentials of the blogger when I can identify these easily.)
Here are some opinions:
In an article with the ironic title “Turtles all the Way Down”, Will Baude of Crescat Sententia, who may or may not be a lawyer, but who often comments on legal matters, ponders the effects of such a law:
Writing at Ex Parte, a web log by students at Harvard Law, Jennifer Carter posts two brief side by side articles. In one she writes:
Jon Persky, a law student, comments:
There’s no question that, whether or not the MPA is allowed to stand, the courts will soon need to draw a bright line between acceptable and unconstitutional uses of the Exceptions Clause. But how sad it is that the far reaches of constitutional technicality have been exploited for a purely symbolic issue.
In two articles, John Chavetz of Oxblog confidently decrees the law is unconstitutional:
Justin Katz criticizes John Chavetz for overconfidence:
I suspect Justin Katz is correct; we don’t know if the law is constitutional. The two legal professors blogging give opposing opinions; both couch their conclusion as “likely” or “unlikely”.
< a href="http://amptoons.poliblog.com/blog/000975.html"> I’m on record hoping this law is unconstitutional. My major concern with this law has nothing to do with same sex marriage. I like the separation of powers. I prefer to see federal constitutional matters decided in federal courts, and ultimately in one Supreme Court, not 50 separates state courts.
Although I am fascinated by this argument, I hope as Ampersand suggested, the Senate will neither consider this matter, nor enact the bill. In that case we will never learn if the law is constitutional as the Supreme Court will not hear the matter. In the meantime, I am fascinated by the arguments.
On a personal note: Do summer colds ever go away? Not only have I had a horrible cold for the past week, but my husband has one. And guess what? My cat was diagnosed with pneumonia! My blogging is going to be pretty light on this this one passes.
July 29th, 2004 at 9:33 am
Ah, but opponents are not wasting their time pushing the bill. The bill is the reddest of meat thrown to the religious right, whose members have recently said they feel somewhat betrayed by the Bush White House. With a very high percentage of the nation now claiming to be evangelical Christians, wasting taxpayer time debating an unviable bill is a major Bush campaign strategy.
This comment was written by Diane.Report this comment to the moderators
July 29th, 2004 at 9:53 am
“The bill is the reddest of meat thrown to the religious right, whose members have recently said they feel somewhat betrayed by the Bush White House.”
That is very true. Additionally, . . . “if their purpose is to enact a law that will prevent same sex marriage.” this one is not it. I would not substitute my judgement for that of the legislature, which says the law is necessary to protect States rights.
Looking past the political aspects of the law. It does a supurb job of accomplishing thr agenda of protecting States rights, provided it is Constitutional. All federal cases involving controversy over DOMA (a States rights issue) shall be heard only by the Supreme Court. If that does not protect States rights I don’t know what would.
This comment was written by J Stevenson.Report this comment to the moderators
July 29th, 2004 at 10:11 am
Can we refer to this as the All Your Case Are Belong To Us bill?
Courts are reluctant to limit their powers unless those powers clearly belong to another branch. And a law is unconstitutional if the courts say it is. SCOTUS was hostile to the idea of limiting its jurisdiction in the Guantanamo detainee cases; I don’t see any reason it will be more relaxed about that idea now.
I think some of the more foresighted conservatives are realizing that this would be a very, very bad precedent. What if a Democratic Congress decided to exempt its own favorite legislation from judicial review? (Anyone who thinks “activist judges” lean only left doesn’t know much about the federal bench.)
This comment was written by mythago.Report this comment to the moderators
July 29th, 2004 at 10:37 am
>>What if a Democratic Congress decided to exempt its own favorite legislation from judicial review? (Anyone who thinks “activist judges” lean only left doesn’t know much about the federal bench.)
Even if al activist judges leaned left right no (which isn’t at all clear), I would expect legislators to be very, very tempted to tack something like this onto laws frequently if it turned out to be constitutinally protected. Why wouldn’t they? Every branch and every party can be guilty of power grabs. It’s human nature.
I think the powers are fairly well balanced right now, and this would really unbalance things. (And lead to some odd ball distortions. I don’t even think we can predict all the oddball distortions and legal ploys that could arise if HR3313 were passed and later imitated.)
That’s why I really, really don’t like this law.
This comment was written by lucia.Report this comment to the moderators
July 29th, 2004 at 11:05 am
The first part of DOMA and 1313 will most probably fall — federal definition of marriage. Not only because of the federal issue it so blatantly creates, but also it certainly encroaches on judicial power. However, the second part — no state must give full faith and credit to another, may have a chance under 1313 because it involves a Constitutional issue where the Supreme Court is the court of original jurisdiction and the regulation of marriage is a State’s rights issue. The Congress can limit controversies relating to State’s rights issues to only Supreme Court review.
This comment was written by jstevenson.Report this comment to the moderators
July 29th, 2004 at 12:14 pm
jstevenson, I have questions — as a matter of clarification, not dispute:
Are you saying that the second part of DOMA would be upheld, even without HR 3313?
I read several places. In fact, I’ve read that DOMA was redundant on this point because the full faith and credit clause has never been held to apply to marriage.
In regard to the first clause, are you saying the Fed’s can’t define marriage for federal purposes, like social security etc?
Thanks!
This comment was written by lucia.Report this comment to the moderators
July 29th, 2004 at 3:09 pm
It’s the same thing as the stupid flag-burning statutes that Congress passed in the wake of the Court’s ruling that such activity was protected speech. Win-win for the right — they get points for doing it, plus they know there’s a good chance that the Court will strike it down, in which case they can go around whinging and whining about the counter-majoritarian problem.
I am quite curious about something, though. If VAWA went down on Commerce Clause grounds, how the hell does DOMA make it over the bar? (To be less elliptical for those not part of The Tribe, the commerce clause is the part of the Constitution that authorizes Congress to pass legislation regulating commerce and has been used as the basis for much general regulation, including civil rights measures like Title VII and the public accommodations act. The Violence Against Women Act was invalidated in Morrison because, despite the careful accumulation of a big paper record demonstrating the economic effects of violence against women, the Court did not see VAWA as sufficiently implicating commerce.)
This comment was written by CynicalAeschylus.Report this comment to the moderators
July 29th, 2004 at 4:05 pm
Aeschylus–
Fair point, though a close reading of the FFC clause suggests that Congress could be deemed to have a role in implementing that clause. But the first part of DOMA, the definition of marriage–no. It’s hard to see how Congress has that power. The partial-birth abortion ban has similar problems, though courts may not reach them in light of the more substantive concerns.
This comment was written by Thrax.Report this comment to the moderators
July 29th, 2004 at 4:25 pm
Has DOMA been challenged on Commerce Clause grounds yet?
This comment was written by mythago.Report this comment to the moderators
July 29th, 2004 at 8:49 pm
This is one of those issues where the debate among scholars is not echoed in the courts. The Supreme Court has held many times, as far back as 1850 (Sheldon v. Sill), that Congress can limit the jurisdiction of lower federal courts, and there really hasn’t been much doubt about it since. The theory is that (a) because Congress had the power to not create federal courts at all, it had the power to create federal courts with only limited jurisdiction, (b) the powers that federal courts are to exercise under Article III are a ceiling, not a floor (i.e., Congress didn’t have to give federal courts all of those powers), and (c) due process operates as a check against vindictive denials of access to federal courts (i.e., Congress couldn’t deny access to specific groups) or against complete denials of access to any court at all.
I don’t want this thing to be enacted, but I haven’t seen anyone knowledgeable argue that the precedents are ambiguous.
This comment was written by Thrax.Report this comment to the moderators
July 30th, 2004 at 11:09 am
Limiting the power of the federal courts in general (say, by shifting jurisdiction or by making other issues state-court matters) is not the same as writing legislation that attempts to insulate itself from Constitutional scrutiny.
This comment was written by mythago.Report this comment to the moderators
July 30th, 2004 at 10:02 pm
If it were entirely isolated from constitutional scrutiny, there’d be a due process problem. But it’s not. State courts can address the constitutionality of the law just fine. Given that, there’s no logical distinction between preventing courts from addressing a particular type of case, which everyone agrees is OK, and this.
I’m not sure if DOMA has been challenged on commerce clause grounds.
This comment was written by Thrax.Report this comment to the moderators
July 31st, 2004 at 2:37 pm
Given that, there’s no logical distinction between preventing courts from addressing a particular type of case, which everyone agrees is OK, and this.
Sure there is. “Courts may not hear challenges to marriage laws”–which brings up a whole host of federalism issues, but all right–is a little different than “Courts may not decide whether or not this anti-miscegenation law violates the 14th Amendment.”
This comment was written by mythago.Report this comment to the moderators
July 31st, 2004 at 3:08 pm
Thrax: >>I don’t want this thing to be enacted, but I haven’t seen anyone knowledgeable argue that the precedents are ambiguous.
I’m confused by this statement. Isn’t Joanna Grossman, who writes for finddlaw knowledgeable? She is an associate law professor.
I know her evaluation could be wrong, but I find it difficult to believe she is not knowledgeable. It seems to me that knowledgable people disagree on the meaning and applicability of various precedents. (Unknowledgable people are also split.)
This comment was written by lucia.Report this comment to the moderators
August 1st, 2004 at 2:07 pm
lucia: I’m not sure what Grossman’s specialty is. Her column betrays no familiarity with the relevant precedents in this area (i.e., Sheldon v. Sill, Lockerty v. Phillips, Yakus v. United States, Bartlett v. Bowen, etc.). She may be familiar with them but dumbing down her argument for a general audience, but nothing about the column even acknowledges that the precedents are there. That’s why I said I haven’t seen anyone knowledgeable say that the precedents are ambiguous. (She does talk about Romer on the theory that laws motivated by “animus” aren’t OK, but whether a given court wants to read animus into the MPA is a pretty uncertain proposition.)
This is actually a fairly obscure corner of the law, and I’d like to see one of the dozen or so scholars that specializes in it weigh in–but I took a course with one of that dozen or so, and his book makes it quite clear that Congress has broad power to strip Article III courts of jurisdiction over specific issues as long as some body (such as state courts) is left to hear those challenges.
mythago: The issue is not “Courts may not do this.” The issue is “Federal courts may not do this.” No obvious federalism implications.
No, I still don’t see why there’ll be a distinction between “federal courts can’t address issue X” and “federal courts can’t address the constitutionality of law X,” given that the former tends to subsume the latter. More to the point, the Supreme Court, in Lockerty, explicitly upheld a law that stripped all courts of the power to adjudicate challenges to a federal law (the Emergency Price Control Act during WWII). In Yakus, a defendant convicted of violating the Act complained about not being able to challenge certain regulations promulgated under the Act, and the Supreme Court said that was okay. The only body that could hear such challenges was a specially created thing called the Emergency Court of Appeals, a non-Article-III body. You can argue, I guess, that having a federal body (even if not Article III) to hear constitutional challenges beats having state bodies hear them, but I don’t see much ground for that. If the question is Congress’s power to define the jurisdiction of Article III courts, once you acknowledge that you can take away from those courts the power to hear a specific constitutional challenge, the game’s up.
Again, I don’t like the MPA or want to see it enacted, but I think the precedents are clear.
This comment was written by Thrax.Report this comment to the moderators
August 1st, 2004 at 7:09 pm
Lucia: Clarification: I said the first part of DOMA and I actually meant § 1738, subsection 3 “Definition of Marriage”. As for that section, I think H.R. 3313 will fail based on Marbury v. Madison. Its path to failure may be more difficult to discern. The strength of the Constitutional argument – fundamental right, due process, or FFC I cannot speak on. I think the government may be able to define marriage for federal purposes, but I don’t think the government can take away the ability to review the Constitutionality of that regulation from the Supreme Court. “[I]n all cases where original jurisdiction is given by Constitution, Court has authority to exercise it without any further acts of Congress to regulate its process or confer jurisdiction.” Kentucky v Dennison (1861) 65 US 66, 24 How 66, 16 L Ed 717.
Congress can divest lower courts of jurisdiction. Under sec. 1331 of title 28, district courts have original jurisdiction of all civil actions arising under the Constitution of the United States, etc. Congress gave that power, under Article III. The second clause of H.R. 3313 only takes appellate jurisdiction away from the Supreme Court, another power given by Congress. Therefore, Congress cannot take away the power of the court to hear DOMA questions regarding Constitutionality.
Application of H.R. 3313 to section 2 – the “FFC” section — probably can withstand attack. The courts are reluctant to strip away from the State the definition, interpretation, and application of marriage laws. In addition, they are not very willing to force another State’s moral experimentation on another state under the FFC. That is from Professor Brian H. Bix University of Minnesota 17 Notre Dame J.L. Ethics & Pub. Pol’y 53 (2003). It is a decent law review article on euthanasia. It provides good parallels and analysis. I would tend to agree with his conclusions regarding marriage and DOMA. Looking past the euthanasia laws, you can imagine that States rights will be more vigorously enforced in the realm of traditional marriage definitions than euthanasia. Nevertheless, Congress has not taken this power away. The Supreme Court jurisdiction statute section 1251 still allows jurisdiction for the Supreme Court to hear cases in controversy between a state and a noncitizen. Citizen B says: State A failed to give me Full, Faith, and Credit of their laws; this is ok.
This comment was written by jstevenson.Report this comment to the moderators
August 1st, 2004 at 7:58 pm
Congress can probably restrict the Supreme Court’s appellate jurisdiction; the Supreme Court so held in Ex parte McCardle (where Congress had denied the Supreme Court jurisdiction of habeas corpus appeals and the Court dismissed on that ground), though that case didn’t deal with someone trying to raise a constitutional challenge in the Supreme Court. Some have suggested that the Supreme Court can’t be deprived of its “essential functions,” though there’s precious little support for that. At any rate, given the dearth of case law, the Supreme Court is a somewhat murkier problem, but McCardle is the leading case and there’s not much in McCardle to suggest limitations on Congress’s power.
This comment was written by Thrax.Report this comment to the moderators