July 20, 2004

What in Tarnation...?

by PG

From PFAW:

Right-wing House members are trying to whip up a backlash against last week's Senate defeat for the Federal Marriage Amendment. So they're promising a vote this week on the so-called "Marriage Protection Act," which attacks the right of gay men, lesbians, and every other American to challenge the discriminatory 1996 "Defense of Marriage Act" (DOMA) in federal court. [...]

In technical terms, the Marriage Protection Act would strip the federal courts of jurisdiction to consider citizens' legal challenges to DOMA's "full faith and credit" provision. That provision tries to "protect" each state from having to recognize the marriage of same-sex couples lawfully performed in other states despite the Full Faith and Credit clause of the U.S. Constitution.

I am now forced to confess my complete ignorance of constitutional law, because I had no idea that Congress could protect itself from judicial review merely by passing a law that said federal courts lacked jurisdiction over a particular statute.

The rationale behind denying federal jurisdiction to the "full faith and credit" provision is obvious: because that provision deals with the states' interactions with one another, and is the patently unconstitutional aspect of DOMA, conservatives hope to preserve it by restricting any suits dealing with it to state courts.

So the scenario goes something like this: Jane and Sue get married in Boston and move to Crawford. Texas, of course, does not recognize their marriage. They sue to receive the same rights and benefits granted as a matter of course to, say, J. Howard Marshall and Anna Nicole Smith.

Article 1, Section 3a of the Texas Constitution does say that "Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative." Jane could try suing in state courts for her equal right, regardless of sex, to marry Sue.

But she's already gotten married to Sue, so she opts instead to sue under the U.S. Constitution's Article 4, Section 1 guarantee that "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."

Now those of you actually in law school will have to help me out. Do state courts take lawsuits based in the federal constitution? Isn't dealing with federal law the whole point of a federal court system?

July 20, 2004 07:40 PM | TrackBack

I'm not totally clear on this, but at least when it comes to the Supreme Court, its federal appellate jurisdiction comes from Congress not from the Constitution. Congress can remove certain parts of this jurisdiction, but they can't remove all of it and they have to remove an entire class of cases, although I'm not entirely sure when something starts being considered a class rather than a specific issue. I know that for example, just removing review of presidential pardons is not enough.

Perhaps someone who knows a bit more can clear up my explanation a bit.

Posted by: PoliticoMonkey at July 20, 2004 08:57 PM

From what I understand given that I've been studying for the bar exam, even if they were to strip federal jurisdiction from the lower courts, the Supreme Court would still be able to rule on the constitutionality of DOMA. The reasoning behind it? No clue.

Posted by: yasmín at July 20, 2004 09:59 PM

Here's the short answer:
Parts of Article III suggest that Congress has the power to remove jurisdiction from all federal courts. The Supreme Court's original jurisdiction is very limited, so we wont bother with that here; its appellate jurisdiction is "with such exceptions, and under such regulations as the Congress shall make"; and the lower courts very existence is by Congressional grant, implying the lesser right to limit their jurisdiction. There are also two seminal cases: Ex parte McCardle, and Sheldon v. Sill that could be read to say that Congress has plenary power to limit both the lower courts' jurisdiction however it chooses, and the Supreme Court's appellate jurisdiction. Some scholars take this view.

However, it gets more complicated when we realize what that might mean: Congress can totally subvert the Constitution by denying any judicial review. Thus, other theories about what are permissible restrictions have arisen, most notably Henry Hart's dialogue at 66 Harv. L. Rev. 1362 (a must-read), and Akhil Amar's theory, found in 65 B.U. L. Rev. 205. Part of this theory is, as PM starts to point out, that Congress cannot tell a court "how to decide a case" once it grants jurisdiction. For instance, it cannot say courts only have jurisdiction to say that the pledge of allegience is constitutional. Again, this is just a theory, and too complicated to go into here.

To answer PG's question more directly, state courts have general jurisdiction, and may always decide federal constitutional issues (and, in fact, must) because they are bound by the supreme law of the land. Some may argue that federal courts are particularly suited to decide federal law issues, but, again, this is another ball of wax.

For more, see me here.

Posted by: Matto Ichiban at July 20, 2004 10:14 PM

Actually, my post here is better.

Posted by: Matto Ichiban at July 20, 2004 10:21 PM

But were this jurisdiction-stripping bill only going to affect some Cartesian wax-type analogue of the federal judicial power -- I really am interested in what would come of it. Can the Congress completely remove an issue from the reach of the judicial power? Certainly the Congress can abolish the district and circuit appellate courts, but can it stop "SCOTUS," the long-armed CertGranter? Further, if a state denying effect to a marriage license permits no avenue for judicial redress, then from which state court (board, whatever) of last resort would the case be appealable to SCOTUS? After all, by long-standing and famous precedent, SCOTUS' original jurisdiction may not expand without constitutional amendment. Just some thoughts.

Posted by: Erik Newton at July 20, 2004 10:49 PM

Perhaps one could go to prison for violating a gay-marriage ban, and then seek an original writ of habeas corpus in the Supreme Court.

Posted by: Milbarge at July 20, 2004 11:22 PM

Yes, if they were made illegal I suppose so, only the great writ has but one remedy. Although, each Justice does have equitable powers and could thus perhaps, once obtaining jurisdiction on petition for an original writ, issue injunctive relief to whatever end would "prevent injustice." Strange scenarios -- again, but were there a Cartesian wax...

Posted by: Erik Newton at July 20, 2004 11:39 PM

Mil and Erik bring up another interesting point about jurisdiction stripping: When faced with a situation where Congress appears to have removed all federal court review, the Court has read those statutes extreeeeeemely narrowly, and found other avenues to federal revue, like a habeas corpus petition directly to the Supremes (though it's only been granted like once in the last 80 years). But this is nothing more than avoidance of the issue (though very practical, for it avoids a sticky constitutional issue). On whether Congress may remove the Supreme Court's appellate jurisdiction (setting asside anything about original jurisdiction, which would only rarely apply), it depends on how broadly one reads the exceptions and regulations language of Article III.

Some have posed that it means exactly what it says: Congress may regulate all jurisdiction. Others, like Henry Hart (see supra), have said that Congress may not destroy the essential function of the Supreme Court in our constitutional design--in other words, it cannot remove all avenues, however remote, of federal law reaching the High Court. Others, like Akhil Amar, say that Congress cannot remove an issue simultaneously from all federal courts--in other words, that either the Supreme Court or a lower federal court must be able to hear cases that involve federal questions (oversimplified, but good for our purposes).

The important thing to remember here is that this is all theoretical: To quote Hart the best I can remember: Congress has never tried to destroy the Constititution. Personally, I'm a big supporter of the Hart theory, and I'd say the proposed statute would be unconstitutional for cutting off all possible review of federal issues.

Posted by: Matto Ichiban at July 21, 2004 11:47 AM

In addition the the qualifications everyone's already expressed-- which add up to the conclusion that we don't know what the jurisdiction-stripping power really amounts to, because it's so rarely been tested in peacetime or in the 20th century, and that all we've really got are some interesting academic articles and a lot of failed Congressional bills-- there's the difficulty that Congress *can't* prevent federal *trial* courts from ruling on constitutional questions. Jurisdiction-stripping is *not* equivalent to binding Supreme Court precedent deciding a constitutional question. So if appellate jurisdiction were stripped but the underlying matter still had to be heard in federal court (e.g. if we had a conflict-of-laws case regarding marriage and divorce in different states, or if there's a violation of a federal criminal statute against flag-burning) then there's no way to prevent the constitutional question from being reached.

Posted by: Jacob T. Levy at July 22, 2004 04:58 PM

Check out Josh Chafetz's opinion on the matter (he thinks stripping federal jurisdiction is impossible).

Posted by: PG at July 25, 2004 07:00 AM
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