Josh Chafetz Explains It All

Concerning the Marriage Protection Act, HR 3313, which passed the House this week. The goal of the MPA is to refuse every court in the land the ability to rule on the Defense of Marriage Act. You'd think that this would be contrary to the spirit and the letter of the law, and according to Oxblogger Josh and literate people everywhere, you'd be right:

Put simply, Congress can't do that. Article 3, section 2 of the Constitution reads, "The judicial Power [of the United States] shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." (Emphasis added. [by Josh])

Now, section 2 also provides that, "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." But the exceptions and regulations language is clearly talking only about the Supreme Court's appellate jurisdiction. Congress cannot strip jurisdiction over a federal question from the federal judiciary as a whole. In other words, Congress can -- as the 1789 Judiciary Act did --refuse to grant the Supreme Court appellate jurisdiction over certain federal questions, so long as some federal court is given jurisdiction over those questions -- that is, so long as the judicial power of the United States extends to those questions.

Ah ha, but what those erroneous forefathers never figured on was that Congress could amend the Constitution to exempt the Defense of Marriage Act from all that bureaucratic red tape. High time we put a stop to these activist judges, eh? And what's to stop the president from creating a cabinet-level body to protect our sacred institution—a Marriage Enforcement Department of Defense of Marriage Protection Defense Marriage. Replete with Nuptial Stormtroopers, to ensure that you're not doing any of the dirty bad things in your bedchambers.

As Oscar Wilde said, "I can believe anything, provided that it is quite incredible." Inexplicable as HR 3313 is, it's a sure sign that we're seeing the last gasps of this movement. Gay marriage is all but granted to the citizenry at this point—to the next bulwark, social conservatism!

Posted by Kriston at July 24, 2004 4:45 PM