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July 30, 2004

Unheralded... but Right (Perhaps)

When I requested his entrance into the debate about the constitutionality of the Marriage Protection Act, Eugene Volokh emailed that he lacked time and expertise to comment appropriately. Subsequently, it appears that either his interest was piqued or the sheer number of inquiries made some sort of comment expedient.

Anyway, although he doesn't mention my take, I'm glad to see that the professor agrees with me:

People would still be able to assert their federal constitutional rights -- just in state courts, which are also required to follow the U.S. Constitution, rather than in federal courts. (Recall that the Constitution doesn't even require Congress to create subordinate federal courts at all, and, as the quote above shows, specifically authorizes Congress to limit even the Supreme Court's appellate authority.) My understanding, from what Gary said, is that this is the majority view among leading federal courts scholars.

Of course, Mr. Volokh also notes that the very fact that the issue would fall to the state courts is problematic for those who oppose same-sex marriage in that state courts could rule it unconstitutional in their own states, putting pressure on fellow judges to rule in harmony and leaving no overriding recourse, except constitutional amendment(s). Whatever the case, the wisdom of the act seems to me a murky judgment to make; if we're presuming that judges are more likely to rule in favor of same-sex marriage than not, then I incline (somewhat) toward at least requiring the rulings of no fewer than fifty courts — that are subject to varying degrees of regulation by fifty-one legislative bodies.

Still, I agree that "if you really want to make sure a statute isn't invalidated, a narrowly tailored constitutional amendment... is indeed the first-best alternative, especially when it seems like it could well be politically plausible." Word on the street is, however, that the Senate won't even let the Marriage Protection Act through, so I'm not sure why an amendment version would fare better.

Posted by Justin Katz at July 30, 2004 12:28 PM
Marriage & Family