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Iowa’s own Representative Steve King (R, IA-04) grabbed national attention this week by introducing a bill to “prevent federal courts from hearing marriage cases,” thereby stopping the U.S. Supreme Court from “destroying traditional marriage.” After the jump I’ve posted King’s official statement about the “Restrain the Judges on Marriage Act” as well as the full text.
President Barack Obama would surely veto this bill, even if it quickly passed the U.S. House (unlikely) and Senate (less likely). So King’s effort looks like a publicity stunt to bolster his image as one of the leading culture warriors on the right.
Out of curiosity, I asked Drake Law School Professor Mark Kende, an expert on constitutional law, whether it would theoretically be possible for Congress to limit the Supreme Court’s authority to consider any case on marriage. According to Kende, the U.S. Constitution allows Congress to “make exceptions to the Supreme Court’s appellate jurisdiction.” Most Congressional efforts along these lines have failed to become law. However, a 19th-century precedent exists; in that case, Congress blocked the Supreme Court from ruling on an appeal in which justices had already heard oral arguments.
Whether King’s proposal would be constitutional is a more complicated question, Kende said. The Reconstruction-era law blocked a specific kind of appeal based on habeas corpus but did not bar the Supreme Court from ruling on all cases in that area of the law. The Constitution allows some leeway for “jurisdiction stripping” as a Congressional check on the judiciary, but that doesn’t necessarily mean citizens could be prevented from taking any case about their fundamental marriage rights to the Supreme Court.
In an alternate universe where Congress passed and the president signed King’s bill, the twelve federal appellate court rulings would be binding in their regions. Most federal court rulings on same-sex marriage bans have supported the principle of marriage equality. Only a divided 6th Circuit Court of Appeals upheld states’ ability to limit marriage rights to opposite-sex couples.
Representative Steve King’s April 22 press release (emphasis in original):
King Introduces “Restrain the Judges on Marriage Act”
Washington, D.C. – Congressman Steve King released the following statement after introducing his bill “Restrain the Judges on Marriage Act of 2015.” This bill strips federal courts of jurisdiction to hear cases related to marriage. The effect of the bill would prevent federal courts from hearing marriage cases, leaving the issue to the States where it properly belongs.
“For too long, federal courts have overstepped their constitutionally limited duty to interpret the Constitution.” Said King. “Rather, federal courts have perverted the Constitution to make law and create constitutional rights to things such as privacy, birth control, and abortion. These unenumerated, so-called constitutionally-protected rights were not envisioned by our Founding Fathers.
My bill strips Article III courts of jurisdiction, and the Supreme Court of appellate jurisdiction, ‘to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, any type of marriage.’ Second, my bill provides that ‘[n]o federal funds may be used for any litigation in, or enforcement of any order or judgment by, any court created by an Act of Congress.’
I urge the House to bring this bill to the Floor. If passed, my bill would stop the Court from destroying traditional marriage and preserve the votes of millions of voters in States that have passed bans on same-sex marriage.”
To view the bill text, click here.
Full text of King’s “Restrain the Judges on Marriage Act”: