Republican leaders have not been shy about laying out their strategies for undoing the damage caused by the Supreme Court’s activist decision in Obergefell v. Hodges. There’s just one problem: All of the proposals making headlines are futile.
Scott Walker wants a constitutional amendment allowing states to define marriage, while Ted Cruz would amend the Constitution to subject Supreme Court justices to periodic retention elections. Constitutional amendments, however, require a two-thirds vote in Congress, followed by ratification by three-fourths of the states. How likely is that? Rand Paul would prefer to get government “out of the marriage business” altogether, but that solution requires state and federal lawmakers to repeal a vast network of laws involving government recognition of marriage. Bobby Jindal has attempted to defy the Court’s decision — a strategy that is already crumbling in the face of explicit orders from lower federal courts.
But there is one strategy that would allow Congress to roll back Obergefell without amending the Constitution or privatizing marriage. It’s called “jurisdiction stripping,” and it involves nothing more than Congress’s exercising its constitutional authority to define the limits of federal judicial power. The idea of using Congress to rein in activist judges is not new; in fact, it was once advocated by a young lawyer in the Reagan administration named John Roberts. In 1981, decades before he became chief justice and a dissenter in Obergefell, Roberts, then a special assistant to Attorney General William French Smith, wrote a 27-page memo marshaling the arguments in favor of Congress’s power to control the appellate jurisdiction of the Supreme Court over issues like abortion and school busing.
Congress should listen to the young John Roberts and abolish the jurisdiction of the Supreme Court — and all federal courts — over cases involving state laws defining marriage. At the moment, such legislation would require a two-thirds majority to overcome President Obama’s inevitable veto. But come January 20, 2017, if there is a Republican in the White House, jurisdiction-stripping legislation could become a reality. Every GOP presidential candidate should commit to signing such a bill the moment it crosses his or her desk.
The jurisdiction of federal courts is almost entirely a matter of congressional discretion. The Constitution creates only one court — the Supreme Court — and then gives Congress the power to “ordain and establish” lower federal courts as it sees fit. Since Congress has no obligation to create lower federal courts in the first place, it has every right to limit the jurisdiction of those courts it chooses to create.
The jurisdiction of federal courts is almost entirely a matter of congressional discretion.
Congress has never granted federal courts the full powers that they could potentially have under the Constitution. For example, while federal-court jurisdiction could theoretically be extended to all lawsuits between citizens of different states, Congress has always limited this jurisdiction to cases involving a certain minimum “amount in controversy” — currently $75,000. As recently as 1996, Congress passed three bills limiting the jurisdiction of federal courts in the areas of prison litigation, immigration, and habeas corpus proceedings. All three laws were upheld by federal courts.
As for the Supreme Court, its appellate jurisdiction — that is, its ability to review lower-court decisions — is subject to “such Exceptions, and . . . such Regulations as Congress shall make.” Senator Sam Ervin, who became a liberal hero as chairman of the Senate Watergate Committee, said it best: “I don’t believe that the Founding Fathers could have found any simpler words or plainer words in the English language to say what they said, which was that the appellate jurisdiction of the Supreme Court is dependent entirely upon the will of Congress.” In the only directly relevant case it ever decided, Ex parte McCardle (1869), the Supreme Court unanimously upheld the power of Congress to divest the Court of appellate jurisdiction.
Historically, Supreme Court jurisdiction was far more limited than it is today. Until 1889, the Supreme Court could not hear appeals in federal criminal cases. Until 1914, the Court had no right to review state-court decisions striking down state laws or upholding federal law. Essentially, state courts had the last word unless they struck down a federal law or denied the applicability of a federal right.
Returning marriage law to state courts would not harm the country, and it might just save us from a new, ugly chapter in the culture wars.
The fact that the Obergefell decision rests squarely on the Fourteenth Amendment’s guarantees of due process and equal protection provides an additional basis for jurisdiction stripping. Section 5 of the Fourteenth Amendment gives Congress the power to enforce the amendment’s provisions “by appropriate legislation.” As Roberts wrote in his 1981 memo, “it is certainly within the broad scope of §5 for Congress to determine that in certain cases . . . the guarantees of due process and equal protection are more appropriately enforced by state courts.” That is precisely what Congress should determine in the context of same-sex marriage, given the Supreme Court’s utter failure to balance the new right to same-sex marriage with the First Amendment rights of those who have religious objections to gay marriage. (Kennedy’s majority opinion doesn’t mention the free exercise of religion even once; it merely says that believers can continue to “advocate” in favor of traditional marriage.)
#related#By curtailing federal jurisdiction over marriage laws, Congress would not, of course, be outlawing same-sex marriage. It would simply be restoring the status quo as of June 25, 2015, with each state again allowed to control the definition of marriage within its borders. Advocates of same-sex marriage would not be denied access to courts: They could continue to challenge state laws that enshrine traditional marriage, but those challenges would be heard in state court. That’s hardly a doomsday scenario for progressives — after all, gay marriage first gained legal recognition in America as a result of state-court decisions and has been ratified by voters and legislators in eleven states and the District of Columbia.
Could some state courts continue to follow Obergefell’s precedent while others do not? Yes, but it is not unusual that even purported federal rights are interpreted differently in different parts of the country. There are twelve federal appellate courts — the “circuit courts” — and they are free to disagree with one other. The meaning of the Fourth Amendment alone has inspired over three dozen ongoing disagreements among the federal circuits.
The existence of competing interpretations of federal law has not brought the republic down. Likewise, returning marriage law to state courts would not harm the country, and it might just save us from a new, ugly chapter in the culture wars.