A question for the lawyers
By Matthew Hoy on June 7, 2006
You'll have to forgive me for not being really enthusiastic about the marriage protection amendment that's not going to make it out of the House or Senate. Yes, it's blatant politics and an effort to get the GOP based riled up. And for those of you with short memories, the Democrats did the same thing (minimum wage hike anyone?).
Anyway, I was wondering if any lawyer type could explain to me why Congress couldn't just use it's power to limit the jurisdiction of the courts to keep the question of marriage away from autocratic judges.
If anyone has an answer, I'd be interested in hearing it.
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Congress can only limit the jurisdiction of federal courts, not state courts. Family law issues have traditionally been viewed as state issues, not federal issues, therefore they arise predominately in the state court systems. Therefore, the only guaranteed way for the federal government to take control of this issue would be to pass an amendment to the constitution making marriage a federal issue.
RD hit the nail on the head. Most states have passed Defense of Marriage laws. Conservatives should be opposed to federal incursion into areas that have historically been state perogatives. This is a purely political move and what is so amazing is -- it is working. We get the government we deserve!
IANAL, but I think the Congress could, and probably should, do as you indicate. They just have to find enough members with spines.
OTOH, passing a federal constitutional amendment is an excercise in federalism, not a federal incursion: the states have to pass the amendment, too.