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Today in History (1862) - The U.S. government forbids all Union army officers from returning fugitive slaves, thus effectively annulling the Fugitive Slave Law of 1850 and setting the stage for the Emancipation Proclamation. On the same day in 1865, the Confederate Congress voted to enlist 300,000 black troops, granting them freedom with the consent of their owners. Lee surrendered a few weeks later. |
I suppose it goes without saying that not everyone looks forward to May 17th in Massachusetts:
Mat Staver, president and general counsel of Liberty Counsel, issued a statement Monday saying "the federal courts are obligated to step in to ensure that Massachusetts is following the basic principle of separation of powers that is vital to our very system of law and government."
Matto Ichiban has a couple of great posts explaining the host of reasons why there probably isn't a shred of federal jurisdiction over the matter. This point of Matto's was especially interesting:
Both cases, as Matto notes, rejected standing when no more was alleged than an undifferentiated desire to see the government act lawfully. This presents a very interesting question in the gay marriage context: could there ever be federal standing to challenge government action conferring the benefits of marriage on same-sex couples? Suppose, for instance, that the backlash against gay marriage grows more intense in the coming years, and for whatever reason a Federal Marriage Amendment to the Constitution is adopted, prohibiting states from recognizing same-sex marriage. Who could challenge a disobedient state in federal court? The mere fact of watching one's state disobey the federal constitution in giving benefits to same-sex couples is not likely at all to be an "injury-in-fact." Consider the standing test put forth in Allen v. Wright (approved by Lujan, but placed in question by FEC v. Akins, 524 US 11 (1998)):
In Allen, mothers of school children alleged that "they are harmed directly by the mere fact of Government financial aid [contrary to IRS regulations] to discriminatory private schools" , but the Court said that "might be a claim simply to have the Government avoid the violation of law" which is insufficient for standing. Id at 752-55.
Lujan addressed a provision of the Endangered Species Act requiring federal agencies to consult with the Secretary of the Interior to make sure the agency's actions would not jeopardize the existence of endangered species. A subsequent promulgation limited this requirement to agency actions taken in the United States, so wildlife enthusiasts sued for a declaration that this promulgation should extend to international actions. Even though plaintiffs had previously observed foreign habitats of endangered species, the Court held that they had no standing (no "injury"):
Although traditional family acitvists might feel that they are more "injured" by gay marriage than the average citizen, this surely isn't enough after Lujan, where wildlife enthusiasts had raised only "a generally available grievance."
Under current law, the concrete and material nature of an injury required for standing is simply not the kind of injury that traditional marriage advocates can allege, so I don't see how laws conferring gay marriage--even if they disobey the federal constitution--could be challenged in federal court. Unless, of course, an FMA explicitly granted jurisdiction to Article III courts, or created a special administrative agency to deal with its enforcement.
May 11, 2004 5:36 PM | TrackBack