Removing Federal Court Jurisdiction Won’t Save Marriage
By Richard G. Wilkins

Here’s one opinion on an option being considered in the House of Representatives for saving marriage.  Many family-centered groups consider judicial stripping another step in the battle while they are working on passing a Federal Marriage Amendment.

Some individuals, including most recently Pat Buchanan, assert that it is not necessary to amend the Constitution to “protect marriage.” The same thing can be accomplished, they assert, by re-emphasizing Congress’ conclusion that marriage is between a man and a woman (the federal Defense of Marriage Act or DOMA) and then insulating DOMA from federal court review by stripping federal courts of jurisdiction to address marriage.

The proposal seems slick enough. But it will not preserve marriage and will not reprimand an out-of-control judiciary.

Article III of the Constitution indeed provides that Congress can eliminate the jurisdiction of lower federal courts (and the Supreme Court) over marriage. But nothing in the Constitution gives Congress the power to prevent state courts from invoking the Due Process Clause in relation to marriage. The Supremacy Clause provides that the Constitution is the “supreme law of the land.” Accordingly, whatever Congress’ power over federal courts, Congress cannot prevent state courts from deciding what the Constitution says about marriage. As a result, relying on DOMA and then “stripping away” federal court jurisdiction would NOT preserve marriage.

On the contrary, if Mr. Buchanan’s approach were adopted, the Massachusetts Supreme Judicial Court would feel absolutely free to declare that its recent decisions are mandated, not only by the Massachusetts Constitution, but by the U.S. Constitution as well. And, anyone who has read that court’s opinions will tell you, the Masschusetts Justices would be delighted to have that opportunity. Thus, “stripping” federal jurisdiction over marriage will only give us the decision of Massachusetts as the “final” reading of the U.S. Constitution – which other activist state courts would thereafter follow.

Thus, this is not a "fix" that will save either the Constitution or marriage. Jurisdiction stripping won't “save the Constitution” because state courts will be free to misinterpret it at will. Those state judges, as in Massachusetts, can be expected to misread the Constitution to create rights never intended by the Founders – rights not supported by the history, traditions and actual practices of the American people.

Finally, this approach is hardly “new.” Mr. Buchanan may be the most recent person to talk about jurisdiction stripping, but the idea is as old as the Constitution. And, it has NEVER been successful.

“Jurisdiction stripping" has been the proposed "fix" for everything from school prayer to abortion to the 10 Commandments dispute to marriage. But, for the past 50 years, Congress has NEVER adopted a "jurisdiction stripping" measure -- and it never will. Why? Because this approach mandates that the Constitution will mean 50 different things in the 50 different states on the most divisive social issues. (“Jurisdiction stripping” is ONLY raised on contentious issues. Do we really want additional confusion on such questions?) Whatever Americans think about prayer, abortion, the 10 commandments or marriage, we all -- at the end of the day -- want the Constitution to mean the same thing everywhere in the U.S.

In sum, for jurisdiction stripping to work, both houses of Congress would have to be convinced (1) that adopting a statute that WILL result in inconsistent constructions of the Constitution and (2) that only “might” protect marriage (3) is worth doing. Thus, however catchy “jurisdiction stripping” may seem at first glance, this is a political solution that just doesn’t add up.