Last Tuesday, the U.S. Senate decisively rejected efforts to bring to the floor an amendment to the Constitution that would have prohibited the states from recognizing civil marriage for their gay and lesbian citizens.
Rather than risk a similar defeat, House leaders plan to bring to the floor on Thursday a bill that would bypass the amendment process altogether and effectively amend the Constitution by simple majority vote.
The House measure, H.R. 3313, dubbed the “Marriage Protection Act,” would strip the federal courts of jurisdiction to interpret a provision of the Defense of Marriage Act (DOMA), enacted in 1996, which excuses states from granting “full faith and credit” to marriages recognized by another state between persons of the same sex.
Whatever one’s views regarding same-sex marriage, it is difficult to imagine a more dangerous end-run around our constitutional system of separation of powers. Ever since Marbury v. Madison, 5 U.S. 137 (1803), it has been accepted that it is “the very essence of the judicial duty” to interpret the constitutionality of the laws enacted by Congress. The Marriage Protection Act would undermine two centuries of judicial review, giving Congress the final word as to whether the laws it passes are constitutional.
Within limits, the Constitution does give Congress the power to establish the jurisdiction of the Supreme Court and the lower federal courts. Article III grants the Supreme Court original jurisdiction over the relatively small number of cases in which a state or a foreign official is a party, and appellate jurisdiction in all other cases “with such Exceptions, and under such Regulations as the Congress shall make.”
But this power to make “exceptions” that limit federal court jurisdiction is not unqualified: it is necessarily constrained by other provisions of the Constitution itself. Were it otherwise, the amendment process would be superfluous—Congress could enact laws by simple majorities that rewrite the First Amendment or the Due Process Clause and simply exempt these new laws from judicial review.
That is what H.R. 3313 attempts to do. Should it succeed, there will be nothing to stop Congress from attaching a similar exemption to every future enactment of dubious constitutionality.
Few enactments could be as constitutionally dubious as H.R. 3313 itself. For one thing, by foreclosing Supreme Court review, it nullifies the Supremacy Clause, which provides that the Constitution and laws of the United States are the “supreme law of the land.” While state courts could still hear challenges to the Defense of Marriage Act, there would be no final, authoritative interpretation of this federal law that would be binding on the country as a whole.
A second reason that H.R. 3313 is almost certainly unconstitutional is that it discriminates against an entire class of Americans in a manner that violates the Equal Protection Clause. In Romer v. Evans, 517 U.S. 620 (1996), the Court struck down an amendment to the Colorado Constitution that deprived gay and lesbian citizens of the ability to petition the legislature for protection of their civil rights. Writing for the Court, Justice Kennedy said:
“It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance…. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” 517 U.S. 620, 633 (1996).
Like the Colorado amendment, the Marriage Protection Act would unconstitutionally deny gay and lesbian Americans access to their government—in this case, the federal courts—to vindicate their civil rights.
It seems unlikely that any of these constitutional infirmities will make much difference to the House leadership, which has seized on H.R. 3313 as its vehicle for ensuring a vote on same-sex marriage between now and the election.
The good news is that the vote will be only a symbolic one, as the Senate has no plans to consider the bill. The bad news is that some members of the House will take the easy way out, voting for this dangerous and irresponsible measure in the knowledge that it will not become law—and that if it were somehow to be enacted, the federal courts they seek to deprive of jurisdiction would come to the rescue. This time it’s only a trial run. Next time it could be real.
Mark David Agrast is senior vice president for domestic policy at the Center for American Progress.