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.

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.)

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.

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!

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.)

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.

I don’t want this thing to be enacted, but I haven’t seen anyone knowledgeable argue that the precedents are ambiguous.

I’m not sure if DOMA has been challenged on commerce clause grounds.

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.”

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 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.

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.