Gay Marriage and Judicial Jurisdiction

The question of federal court jurisdiction to decide the constitutionality of acts of Congress has always been a thorny legal and political question. One of my law professors, the famed (and late) Herbert Wechsler, pondered long over whether Congress can legitimately withdraw jurisdiction for the federal judiciary to determine constitutional questions in specific classes of cases. (He also represented the New York Times in the famous Sullivan case about First Amendment limits on libel prosecutions, participated in the Nuremberg war crimes trials after World War II, and developed the influential "neutral principles" branch of constitutional jurisprudence, to which many African-Americans and others object vehemently because Wechsler concluded that the landmark Brown v. Board of Education school desegregation decision was invalid.)

The rather esoteric legal argument is whether, having created the federal courts -- since the Constitution only commands one Supreme Court -- and vesting them with jurisdiction, there are any constitutional constraints on Congress acting the other way. Some say the equal protection clause prevents withdrawing jurisdiction over specific kinds of cases involving what the Supreme Court way back in 1938 called "discrete and insular minorities." Others take the position that Congress has plenary (total) power to decide what, if any, cases the federal courts can decide.

Now the issue of gay marriage may take this question from the realm of hypothesis to reality. Today the House of Representatives voted to remove federal court jurisdiction to decide challenges to the "Defense of Marriage Act." That legislation (28 U.S.C. 1738c) provides:

The bill passed today would disallow any federal court from deciding whether Section 1738c is constitutional. This frames the question quite clearly. Of course, it's just a cynical election-year ploy, as the Senate has rejected a consitutional amendment outlawing same-sex mariages and the House failed to pass legislation on the merits. So the House majority assumes -- probably rightly -- that withdrawing judicial jurisdiction is easier than winning on substance.

This is a lingering, but fundamental, issue about separation of powers in the U.S. that has been dormant for decades. It was also the question Prof. Wechsler posed in the final exam for his 1981 "Federal Courts and the Federal System" class at Columbia Law School. Perhaps Wechsler will finally get his "day in court." Too bad he hasn't lived to see it.

 Posted by glenn