Rep. Istook (R-Okla.), joined by 34 other Representatives, has proposed the following bill, HR 4892:
(a) IN GENERAL- Marriage in the United States shall consist only of the union of a man and a woman.
(b) JURISDICTION-
(1) U.S. SUPREME COURT- The Supreme Court of the United States shall have original jurisdiction to hear and determine a claim arising under this section.
(2) OTHER COURTS- Except as provided in paragraph (1), no Federal or State court shall have jurisdiction to hear or determine a claim arising under this section.
But how can the Supreme Court be given “original jurisdiction” to hear these cases? Article III, section 2 provides that the Court shall have original jurisdiction only in “Cases affecting Ambassadors, other public Ministers and Consults, and those in which a State shall be Party.” The last category covers only (here I’m merging article III, section 2 and the Eleventh Amendment) “Controversies between two or more States,” and where a State sues citizens of another State or citizens of a foreign country. It’s hard to imagine how a “claim arising under” the Istook bill would practically fit into any of these jurisdictional headings.
So the bill must be an attempt to add to the Court’s original jurisdiction — but that’s a direct violation of Marbury v. Madison itself. Marbury‘s broad holding is that courts have the power and duty to refuse to enforce unconstitutional laws — but its narrower holding is that a statute purporting to give the U.S. Supreme Court original jurisdiction over suits not explicitly mentioned in the Constitution’s Original Jurisdiction Clause is unconstitutional. Hence the somewhat facetious title of this post; while Rep. Istook may not be trying to overrule Marbury‘s more famous holding, his bill seems to run squarely in the face of Marbury‘s other holding (though I suspect that this is an error on the drafters’ part rather than an intentional attempt to undo that narrow holding, which most people don’t know).
Of course, there’s also the question of what the law is trying to do. If “claim arising” means “legal right or constraint arising,” then the law won’t have any effect on any normal federal or state litigation, since subsection (b) would take away what subsection (a) creates: Subsection (a) might be saying to courts “don’t recognize same-sex marriages,” but subsection (b) would be saying “but you don’t have the jurisdiction to hear a claim arising under subsection (a).” So if such a law existed at the time of the Massachusetts Goodridge litigation, and Massachusetts officials said “Stop! Under subsection (a), we can’t recognize same-sex marriage,” the Massachusetts Supreme Judicial Court would presumably have just said “Well, but under subsection (b) we lack the jurisdiction to hear your subsection (a), so the Istook law will have no effect on our decision.”
Alternatively, “claim arising” might mean “affirmative claim to relief arising,” so that it covers only a lawsuit saying “Based on subsection (a), I the plaintiff want some same-sex marriage invalidated” rather than a defense saying “Based on subsection (a), we defendants need not recognize same-sex marriages.” But then subsection (b) seems pointless: After all, the only practical applications of subsection (a) are as defenses, not as affirmative claims to relief (unless the whole point of the statute is simply to empower someone to sue, in the U.S. Supreme Court, to have someone else’s same-sex marriage invalidated — and who would have standing to challenge someone else’s marriage that way?).
Finally, if the bill is trying to keep state courts from recognizing same-sex marriages (though as I argue above that’s not what the bill says), I don’t see where Congress would get the enumerated power to do that. But that constitutional problem is so banal compared to the much more interesting constitutional and interpretive problems I raise that it’s not even worth discussing . . . .
If this sounds confusing, I think that’s just because the statute is so awfully drafted. Or am I missing something?
Thanks to reader Josh Rosenbluth for the pointer.
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