Resisting Judicial Tyranny

The US House passed the Marriage Protection Act last week, a bill designed to ensure that the “full faith and credit” clause of the Constitution is not used to impose gay marriage on Texas or any other state.  You may remember Congress passed the Defense of Marriage Act in 1996, which explicitly authorizes states to refuse recognition of gay marriages performed in other states.  However, the lack of respect federal judges show for the plain language of the Constitution necessitated further congressional action.  The Act underscores an important legal point: Marbury vs. Madison did not alter the congressional power to regulate and limit federal court jurisdiction, which is plainly stated in Article III.  The drafters of the Constitution gave Congress the power to limit federal jurisdiction to provide a check on out-of-control federal judges.  In other words, the federalist concept of checks and balances applies to the judiciary just as it does to the legislative and executive branches.  The Marriage Protection Act represents a long-overdue exercise of the congressional power to limit and define federal court jurisdiction.

Americans need to better understand the role of federal courts.  The Supreme Court is supreme only over the lower federal courts; it is not supreme over the other branches of government.  The judicial branch is co-equal under our federal system, nothing more and nothing less.  Yet we’ve allowed federal judges to pursue a social agenda that is at odds with a majority of Americans, in essence converting our courthouses into legislatures.  In the process average people have lost even more power to affect the laws under which they must live.

The Founders never intended for a handful of unelected, unaccountable federal judges to decide social policy for the entire nation.  Just as Texas is not required to recognize medical licenses, law licenses, or driving licenses from other states, it ought not be forced to recognize gay marriage licenses granted elsewhere.  Already some same-sex couples have sued in federal court to force the nationwide recognition of their marriages, so the Marriage Protection Act is needed to preserve states’ rights.  Federal judges have flouted the will of the American people for too long, acting as imperial legislators instead of jurists

The definition of marriage- a union between a man and a woman- can be found in any dictionary.  It’s sad that we need government to define an institution that has existed for centuries.  The best approach to complex social problems, as always, is to follow the Constitution.  This means Congress should restrict federal court jurisdiction when necessary, and social matters should be left up to states under the Ninth and Tenth amendments.

Since the Marriage Protection Act requires only a majority vote in both houses of Congress and the president’s signature to become law, it is a more practical way to deal with the gay marriage issue than the time-consuming process of passing a constitutional amendment. In fact, since the Defense of Marriage Act overwhelmingly passed both houses, there is no reason why the Marriage Protection Act cannot become law this year.

Congress has a constitutional responsibility to stop rogue federal judges from using a flawed interpretation of the Constitution to rewrite the laws and traditions governing marriage.  The Marriage Protection Act, if passed by the Senate and signed by the President, will protect the people of Texas from having marriage defined by federal judges rather than the Texas legislature.