Same-sex Marriage Controversy Exposes Problems with Federal Judiciary

The proposed constitutional amendment defining marriage as the union of "one man and one woman" failed recently in Congress. Soon after that, the House of Representatives approved the Marriage Protection Act. These represent two different approaches to protecting the institution of marriage from an increasingly likely redefinition by the federal courts. Both approaches pose dangers to our federal system. The fact that we have to flirt with these dangers exposes a deeper problem: our rogue federal judiciary.

Before I proceed, I'm concerned that no one misunderstand my position on marriage. I do believe that God instituted marriage when He created Eve to be Adam's wife. I also believe that He unambiguously condemns homosexual activity, including same-sex "marriage." And I believe that the federal courts should not be allowed to tamper with the definition of marriage. My objections to the current approaches to accomplishing this are based on fear of compromising our Constitution, not on any reservations about the nature of the divine institution of marriage.

The constitutional amendment assumes that the Constitution as it now stands could be interpreted to support the idea of same-sex marriages, and must be fixed to prevent such an action by the judiciary. No reasonable person would interpret the Constitution in this way; but the federal courts have a history of unreasonable interpretations that suit their ideological preferences.

Amending the Constitution to deal with this issue is based on the idea that the Constitution is flawed, in that it allows the federal courts to define marriage however they please. Unfortunately, the number of ways in which the courts could misinterpret the Constitution is infinite. Thus the potential for proposed amendments is also infinite. Each such amendment represents some increase in the power of the federal government versus the states, and a further crack in our federal system.

The Marriage Protection Act takes advantage of the power granted to Congress in the Constitution to limit the appellate jurisdiction of the federal courts. It simply states that no federal court has jurisdiction to rule on the constitutionality of the federal Defense of Marriage Act, which in turn says that no state must recognize same-sex unions of another state.

This is clearly legal under the Constitution and would have the desired effect. I think it is preferable to an amendment, but it still scares me to see Congress using this technique.

Imagine that the Marriage Protection Act actually solves the problem with a mere majority of members of Congress in support. Now imagine the next major terrorist attack. Congress and the president propose Patriot Act III, which grants federal agencies the power to search people, houses, cars, computers, etc. without a warrant. Since this would obviously violate the Fourth Amendment, Congress is afraid that the Supreme Court will kill Patriot III. Someone remembers the success of the Marriage Protection Act, and adds a provision to Patriot III removing the bill from the appellate jurisdiction of the federal courts. Once signed by the president, no American would have any recourse against such a bill. There would be no limit to what a president, along with a majority in Congress, could do.

These dangerous work-around approaches are being considered because everyone knows that many federal judges, including a majority of Supreme Court justices, stand ready to usurp legislative powers any time there is an opportunity to advance their ideas of social justice. Article I of the Constitution grants "all legislative power" to the Congress. None is granted to the federal courts. Yet federal judges routinely "legislate" through creative interpretations of the Constitution. The proliferation of amendments and legislation like the Marriage Protection Act is Congress' tepid response to this judicial usurpation.

In the spirit of attacking the cause rather than the symptoms of a disease, I think we should reject such responses. If the problem is that certain federal judges go beyond their legitimate powers, the solution is to remove such judges from office. Judicial legislation clearly violates the judges' oaths to defend the Constitution, and is thus an impeachable offense.

Congress should stand aside from the same-sex marriage issue until a federal court rules that the Constitution protects homosexuals from discrimination in marriage law. At that point the offending judges should be impeached for violating their oaths of office.