Ted Cruz And Steve King Are Attacking The Rule Of Law In Defense Of “Traditional Marriage”

Ted Cruz and Steve King think the Court should be prevented from hearing any case involving same-sex marriage. Because they know they're losing.

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Iowa Congressman Steve King isn’t giving up in the fight against marriage equality, instead he’s introducing a bill in Congress that would strip Federal Courts of jurisdiction in cases dealing with marriage:

A Republican lawmaker is trying to keep federal courts from hearing same-sex marriage cases.

Less than a week before the Supreme Court plans to hear arguments in potentially one of the nation’s most influential cases on gay marriage, Rep. Steve King (R-Iowa) introduced the Restrain the Judges on Marriage Act of 2015 to preserve state bans.

“For too long, federal courts have overstepped their constitutionally limited duty to interpret the Constitution.” King said in a news release. “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.”

(…)

King said his bill would stop the courts from “destroying traditional marriage.”

While it may sound like something completely illegal at first glance, King’s bill, which you can read here, and which is co-sponsored by people like Louie Gohmert and Ted Yoho,  is rooted in Article III, Section Two of the Constitution, which gives Congress the power to define the jurisdiction of the Federal Courts, as well as the power granted under Article I. Section 8 of the Constitution to establish courts inferior to the Supreme Court. Ordinarily, this power has been used for purposes such as setting a floor on the amount of damages that must be at issue in a case involving diversity jurisdiction (meaning a lawsuit between citizens of different states) and for other more general purpose. However, it has been generally understood that the power granted to Congress  to define the jurisdiction of the Federal Courts “under such Regulations as the Congress shall make” and the aforementioned Article I power could potentially give Congress the power to pass legislation restricting the Courts from hearing cases dealing with specific subject matters. That power has not really been tested in the Courts, however, so the exact limits of Congressional authority in this area are unknown and, in some sense, purely theoretical. In the past, efforts were made in Congress to use this power to prevent courts from dealing with cases involving hot button topics such as school desegregation, school prayer, abortion, and flag burning.

Texas Senator Ted Cruz, who is, of course, running for President has signaled his support for measures similar to those that King has introduced. has expressed support for a similar idea, as well as a Constitutional Amendment that would give the individual states the exclusive authority to define marriage. As King does in his press release announcing the introduction of the bill, Cruz’s statements on this issue refer to ‘out of control’ courts that are trampling on the ‘rights’ of the states and redefining the institution of marriage on a whim. Given that Cruz is himself an attorney who practiced before Federal Courts quite often while serving as Solicitor General of Texas, it is somewhat odd to hear him disparaging the system that he was a part of for so long.

None of the other recent efforts to limit Federal Court jurisdiction on hot-button issues has ever managed to become law, and it’s likely that King’s bill would suffer a similar fate. Additionally, it’s fairly obvious that the bill itself is not meant to be taken seriously because it’s being introduced at a time when, even if it did pass, it wouldn’t do anything to stop the likely outcome of the marriage litigation currently pending in the Federal Courts. Assuming the Supreme Court rules as most observers expect that it will, King’s bill would essentially be moot. Theoretically, I suppose it could cause problems in the thirteen states where marriage bans are still in place, but it seems even less likely that Congress would pass a bill like this after June than it is that it would pass the bill before then. Most likely, King’s bill will sit in a committee somewhere and die while he and his co-sponsors use it to raise money from Evangelicals and other social conservatives.

The truly disturbing thing about the proposal that King has put forward, and which Cruz has said he supports, is the extent to which it involves a blatant and cynical attack on the fundamental nature of the Judicial Branch. At their base, the courts exist to protect the rights of minorities from the whims of a majority that would use the law to impose its will, deny their rights, and treat them unequally. The idea that the majority can or should simply use its control of the legislature to forbid the courts from even hearing cases involving the violation of the rights of those minorities would seem to run counter to the core principles of the Constitution. This is one of the reasons why many legal analysts have been skeptical of efforts to strip the courts of jurisdiction in specific cases. Arguably the provisions of the Constitution that give Congress the authority to make “regulations” regarding the Federal Courts was meant to set general rules regarding the cases the courts would have jurisdiction over, not to prevent them from hearing certain types of cases at all. After all, if the second interpretation is accurate, then Congress could simply add a provision barring judicial review for every piece of legislation it passes, and there would be nothing the courts could do about. Only someone with a truly perverted view of the Constitution that puts the whim of the majority about the rights of minorities of individuals could find that acceptable.

Or, as Steve Benen put it recently there’s something disturbing about the whole idea of jurisdiction stripping embodied in King’s bill:

Whatever one thinks of marriage equality, court-stripping is itself a ridiculous idea. The constitutional principles of “separation of powers” hasn’t disappeared just yet, so the idea that the legislative branch will dictate to the courts what kind of cases judges are allowed to hear is more than a little crazy – it undermines the very idea of an independent judiciary.

And it sure as heck isn’t “constitutional conservatism.” Indeed, it’s effectively the congressional version of “legislating from the bench” – Cruz and his cohorts want to adjudicate from the legislature.

Of course, as we’ve discussed before, “constitutional conservatism” isn’t exactly a coherent philosophy, and it bears little resemblance to the history of the Constitution or the state of the law, so I suppose we shouldn’t be surprised to see people like King, Gohmert, Yoho, and Cruz supporting something like this. At the same time, though, as Benen notes elsewhere in his post, the fact that a candidate for President is advocating something like this is really quite distuir

FILED UNDER: Campaign 2016, Congress, Law and the Courts, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Pete S says:

    The idea that the majority can or should simply use its control of the legislature to forbid the courts from even hearing cases involving the violation of the rights of those minorities would seem to run counter to the core principles of the Constitution.

    They may be in the majority party, but in this case Cruz King et al now hold the minority view. I would think from their perspective this is the way to keep the courts from trampling on them with a majority viewpoint. Social conservatives have been portraying themselves as real victims as opinions about same sex marriage have changed over the last few years.

  2. Just 'nutha' ig'rant cracker says:

    Most likely, King’s bill will sit in a committee somewhere and die while he and his co-sponsors use it to raise money from Evangelicals and other social conservatives.

    To paraphrase John McLaughlin: Dougie, you have just inadvertently stumbled upon the truth.

    Only someone with a truly perverted view of the Constitution that puts the whim of the majority about the rights of minorities of individuals could find that acceptable.

    And you have also identified a quality of the fundraising target audience.

    Good job!

  3. Just 'nutha' ig'rant cracker says:

    And I forgot to include that while the bill languishes in limbo, they get to complain to their audience that the Obama administration is twarting the rule of law by keeping the bill from coming to a vote (I know this doesn’t make sense, but tea partiers, ODS sufferers, and Evangelicals will buy it) . As a cold, calculated empty gesture, this is one of the best they’ve had so far.

  4. OzarkHillbilly says:

    Most likely, King’s bill will sit in a committee somewhere and die while he and his co-sponsors use it to raise money from Evangelicals and other social conservatives.

    Grifters gotta grift.

  5. Hal_10000 says:

    Actually … like the poll on gay marriage the other day, I see this as yet another sign that the battle is over. The fundie wing, once hopeful of passing a Marriage Amendment, is now reduced to doomed “it’s my ball and I’m going home now” bills.

    When they stop raising money off this crap, then it truly will be over.

  6. C. Clavin says:

    These Unenumerated, so-called constitutionally-protected rights were not envisioned by our Founding Fathers.

    Neither were trucks or computers, so the Post Office should stop using them, because they were not envisioned by our Founding Fathers.

  7. Pete S says:

    @Just ‘nutha’ ig’rant cracker: There seem to be a lot of candidates trying to raise money from the same shrinking (I think) demographic. Why doesn’t the law of diminishing returns ever kick in?

  8. Matt says:

    “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.”

    What a good little authoritarian asshole…. CITIZEN YOU HAVE NO RIGHT TO PRIVACY NOW OPEN THAT DOOR!!

  9. grumpy realist says:

    @Matt: I do hope whoever is running against him picks up that slip and plasters it all over the networks.

    What a repulsive little oik that man is…

  10. grumpy realist says:

    What happens after your political party panders to the crazy people….

    Y’know, I’m reminded of that old saw about what happens when you decide to take a ride on a tiger….

  11. C. Clavin says:

    I got home in time for the Belinda Jenner Transition Special, so that’s good.

  12. CSK says:

    @grumpy realist:

    Actually, there are two repulsive little oiks, aren’t there?

  13. de stijl says:

    Apparently, the difference between “constitutionally conservative originalist judges” and “legislating from the bench activist judges” is whether or not if you agree with the outcome.

    It’s a permanent, consistent philosophy like the Bush v. Gore decision.

  14. J-Dub says:

    Please let this come to a vote! I want these people on record.

  15. Just 'nutha' ig'rant cracker says:

    @Pete S: Statistically, Evangelicals have deeper pockets than most cohorts other than fiscal conservatives. Also, that cohort tends to dispose of more of its income than others. Other cohorts may give more per gift, but Evangelicals give to LOTS of causes. Diminishing returns show up in smaller contributions rather than fewer.