Representative Dan Burton (R-IN) posted a blog entry on The Hill yesterday in which he attacks President Obama's recent decision to no longer defend Section 3 of the Defense of Marriage Act because it's unconstitutional.
Two weeks ago, President Obama made an unprecedented decision to declare a Federal law unconstitutional and thereby abdicate his responsibility to uphold and defend that law.
This is false. Attorney General Holder announced that the administration will not defend the law if challenged in court. The law is still in effect and is being enforced. It's also not unprecedented for a president to take an action like this. So what is the congressman doing to protect marriage? He submitted the Marriage Protection Act of 2011 which states:
No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C.
Here is what Section 1738C states:
No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.
So what would this bill do is passed? Mr Burton explains it himself.
This bill simply states that no courts created by an Act of Congress – meaning Federal courts – will have jurisdiction to hear cases regarding same-sex marriage. Additionally, the Supreme Court will not have appellate jurisdiction to hear these cases. In short, the bill makes same-sex marriage an issue to be determined by the people through their state legislatures or via referendum, not by Federal judges.
That is a power of Congress as granted by the U.S. Constitution. Article III only creates a supreme court, not the appelate and district courts we have today. Article III states Congress has the power to "ordain and establish courts".
Having established the courts, Congress, except for what's specifically granted in the Constitution, can determine what the courts, including the Supreme Court, does or does not have jurisdiction over. The Detainee Treatment Act is a recent example where U.S. law concerning habeas corpus was amended, removing the jurisdiction of any court or judge over enemy combatants. The purpose of this was to prevent detainees being held at Guantanamo, the majority of them being innocent, from submitting a writ of habeas corpus to a federal court.
I would like to remind Mr Burton of the Republican Party platform which includes this:
Republicans will uphold and defend our party’s core principles: Constrain the federal government to its legitimate constitutional functions. Let it empower people, while limiting its reach into their lives.
A question for Mr Burton. How does telling each state they are not required to respect legal relationships established in other states and removing the courts' jurisdiction constrain the federal government, empower people and limit the reach of the federal government in their personal lives?
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