DOMA, FMA, Marriage Protection Act... I'm confused

[chimpy the poopthrower]

Does anyone else find it difficult to keep these straight? Here's what I think I know: DOMA was passed in the 90's and, among other things, it says that states have the final say on whether to acknowledge marriages legalized in other states. FMA is the one that just failed, and it was to add an amendment defining marriage as between a man and a woman. MPA is the one they are trying to pass now.

MPA has been described as giving "states final say over recognizing same-sex unions sanctioned elsewhere." But isn't that what DOMA already does? In the same article (http://apnews1.iwon.com//article/20040722/D83VTHEG0.html?PG=home&SEC=news), it says, "The legislation would strip the Supreme Court and other federal courts of their jurisdiction to rule on challenges to state bans on gay marriages under a provision of a 1996 federal law that defines marriage as between a man and a woman." Is the 1996 law they are referring to DOMA? So it sounds like what MPA does is say that DOMA can never be challenged on Constitutional grounds. It sounds like trying to do an end run around the Constitution. How can Congress pass a law making another law immune from judicial challenges? I'm not a lawyer, so please help me out here. Am I totally misunderstanding this?

:shrug:

[chimpy the poopthrower]

1. Boy, this thread dropped quickly.

10 minutes and it's off the front page. I think it's worth another :kick:

[Q3JR4]

2. I'm not a lawyer, but here's my take on it...

According to some constitutional scholars, the legislation now going through congress that would strip the courts of their power to try certain cases is probably constitutional. In the eyes of others, it probably isn't. Because of the ambiguity in this area, no one knows for sure what would happen until the law reaches the very court the law would effect.

If the supreme court upholds the constitutionality of the law, two things would happen. Number one, congress would be able to permanently remove specific issues from the range of court power. This would effectively remove court oversight from whatever congress decided to shield. Secondly, congress would be able to, in the course of things, remove the teeth from the third branch of government. We would have a court system, but the supreme court would have no power to act as a check on either the legislative or the executive branches.

A cursory read of the constitution reveals that congress has the ability to set the court's jurisdiction, but the court has the final authority to try all cases on a nationwide basis. Because of that simple fact (not to mention issues regarding the separation of powers), the supreme court will undoubtedly find the law unconstitutional and strike it down as such. To do anything differently would limit their power and would strike a blow to one of the fundamental pillars of our government.

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On edit: spelling.

[chimpy the poopthrower]

4. thanks!

That sounds about right. I think/hope SCOTUS will strike it down, but who knows what this crazy court would do? If Bush had a better shot at getting a second term, they would probably pass it. :(

[Q3JR4]

3. It would probably help you to

get a copy of the constitution and read it. If something hasn't been tested before, bottom line, it's up to the Supreme Court to hear the case and decide on it.

[lcooksey]

5. Your assessment of MPA is correct

The Constitution, Article III Section 2, says that "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction... with such Exceptions, and under such Regulations as the Congress shall make." So the goal of the MPA bill is to make DOMA an Exception, which the Supreme Court cannot review.

Theoretically, this would mean that the Supreme Court could never rule that DOMA violates the Full Faith and Credit clause of the Constitution, or the Equal Protection Clause. However, the Supreme Court could rule on whether the MPA itself is Constitutional. And, as I read the Constitution (IANAL -- I am not a lawyer), Congress can restrict what the Supreme Court can rule on. But they cannot remove things from the rule of lower courts.

[chimpy the poopthrower]

6. Interesting.

Has there ever been a bill like this that seeks to make an exception to a law that SCOTUS cannot review? It seems nonsensical on its surface to me. But stranger things have happened (e.g. Bush v. Gore).

I wonder if this is how they will ban gay marriage - through the back door. They couldn't even get a simple majority for FMA. I can see a lot of Americans confusing this bill with the part of DOMA that gives states final say as to whether to acknowledge marriages legal in another state. I can't say that I necessarily disagree with that idea. I can envision, for example, a state legitimizing marriages where the minimum age is younger than the rest of the country is comfortable with. Should all the other 49 states have to accept that marriage? On the other hand, I think that bans on same-sex marriage are discriminatory and violate equal protection. I anticipate same-sex marriage bans being ruled unconstitutional someday when we have a better Supreme Court. Anyway, a lot of people who may not be opposed to gay marriage, might also support the idea that individual states should be allowed to decide for themselves. And if they think that's what MPA does, there might be some public support for it.

Slightly off-topic, but how do states relate to each other WRT driver's licenses? Is a driver's license from any state valid in every other state? Is this by federal law or some sort of agreement between all the states?

[chimpy the poopthrower]

7. one last kick

:kick: