New GOP gay-ban tactics -Court powers could be taken away. (says DeLay)

[Rose Siding]

Realizing that a constitutional amendment banning gay marriage faces little chance of passing soon, if ever, House Republicans yesterday discussed alternative approaches, including stripping federal courts of jurisdiction over the issue, passing a federal law to define marriage and using the appropriations process to ban gay marriage in Washington.

All the legislative action on gay marriage is currently in the Senate, but the House GOP is rapidly developing its own tactics. Leaders will take their first step next week when they take up Rep. John Hostettler’s (R-Ind.) “jurisdiction stripping” bill. This would bar federal courts from hearing lawsuits related to gay sex and marriage.

While the House will not debate a constitutional amendment before the summer recess, it might take it up when Congress resumes in September.

Majority Leader Tom DeLay (R-Texas) told reporters yesterday that he plans to use “jurisdiction stripping” measures to achieve other social policy goals as well.

For example, he will push legislation to stop federal courts from hearing lawsuits related to the words “under God” in the Pledge of Allegiance.

The U.S. Constitution establishes only the Supreme Court but leaves it to Congress to “ordain and establish” the lower federal courts. Arguably, therefore, Congress has the right determine the federal courts’ jurisdiction.

http://www.thehill.com/news/071504/tactics.aspx

[Johnyawl]

1. Ahhh, but what are they going to do about the State courts?

Damn that states rights nonsense!

[LostInAnomie]

2. That John Hostettler making us Hoosiers proud again.

First he sneaks a gun into a airport, and now this brilliant plan.

Surely this shit can't be legal. How can the legislature limit the power of one of the other branches of government? Repigs are the lamest crybabies ever.

[Joanne98]

3. DeLay makes his own laws

This won't stop until the gay community outs every single gay Republican and Libertarian in the country. Sorry but it's true.

[qazplm]

5. it is quite legal

Congress could get rid of federal courts completely if it wanted to except for the supreme court.

it is also not going to work, since clearly this has nothing to do with state courts, and thus far, all of the cases that have led to gay marriage being allowed have happened in, you guessed it, state court.

I dont see what the deal is with pulling jurisdiction. And once a state supreme court ruled against someone, he could STILL appeal it at the US supreme court if he was arguing a federal right was violated (although not positive about that last bit).

Passing a Federal Law would work (because you cant challenge a Federal Law in state court generally speaking), but that should still have no affect over state laws.

[Rose Siding]

6. But the Supremes can only hear a limited number of cases

With so many state supreme courts, how could appeals ever keep up?

[amber dog democrat]

11. The Supreme Court will have to choose what cases to hear

but i can almost guarntee you a writ of cercerari ( sp? ) would stop this dead in its tracks. Even conservative judges, ( with the excepition of Thomas ) have scruples and verying degrees of judicial professinalism .

[Joanne98]

7. Thanks.

Are you a lawyer?

[Tellurian]

8. he's blowin smoke...

everything would end up in the SC and those judges aren't about to work that hard!

[NewJerseyDem]

13. I think it would also apply to DOMA

They would strip the lower federal courts of jurisdiction over DOMA which couldn't be dealt with in a state court since DOMA is a federal law and the complaints would be over the U.S. Consititution, so I don't see how any state courts would have jurisdiction. The Republicans are helped by the fact that Daschle did this (or at least tried to) with some type of local situtation in South Dakota (I'm not sure of the details). So, the Republicans will just say that if Daschle thinks it is fine with that case, then Democrats can't say it isn't fine when saving "traditional marriage".

[drfemoe]

47. "traditional marriage"

somehow I don't think that's the main issue they're after.
It's a convenient target. I'm sure it's not lost on anyone that when power grab begins, it has no brakes.

[TriMetFan]

4. Americans are going too finally

see the true colors of the Republicans. Neo-cons are no better then Hitler and his men.

[tom_paine]

43. Nope. Less violent for the moment, but NO BETTER

Saying which cases may or may not be heard by the judiciary.

If this passes, it will have the same effect as a delayed, stolen election.

THE... SAME... EFFECT...

ANY move to end the Constitution WILL BE VIGOROUSLY OPPOSED!

[Hobarticus]

9. This will blow up in their ass-faces.

Moderate GOPers, and anyone else who wants to keep their jobs, best back away slowly, Delay's coming off the rails.

[MissAnnThrope]

15. Don't You Know...

There is no such thing as a Moderate Republican anymore? The new term is RINO, Republican In Name Only. If you don't toe the line of the extreme right wing and don't agree with their extremism, you're a RINO, not a moderate. You're as bad as those commie Democrats. Man, I have to stop reading that other site.

[rob-ok-vin]

19. Thats why I'm here.

Nothing that I held sacred about the republican party 26 years ago when I registered to vote is still in place for the party in general. I guess today I am a RINO. The thoughts I read in these pages are closer to my beliefs on social issues than any others. And that is what this election has come to. So, guess what? Since ".. your either with us, or against us" I guess that makes me one of those wild eyed, commie Democrats with an "R" on his voter ID card.

[OKNancy]

23. Welcome Rob

We can use all the Democratic voters we can get in Oklahoma.

[merh]

30. Welcome --

Enjoy the board and don't let some of us who get carried away with ourselves turn you off. There are alot of good people that care an awful lot about our world that post on this board. Passion is high and the future at risk.

Welcome to DU :hi:

[TrogL]

33. maybe it's time you switched

[trogdor]

34. Welcome to DU!

I wouldn't flash that "R" around too much though. I up and quit the GOP back in 1999 during the impeachment business. The people in charge of the Republican Party nowadays are nothing more than brownshirts bent on destroying this country.

[MissAnnThrope]

46. Welcome

I know how you feel. I'm very middle of the road. The politicians have all forgotten most of us out here are moderates. They pander to the groups they feel can get them the most votes. In Bush's case, that's the far right. The far right doesn't even represent most Republicans. This election has me scared more than any other election I can remember. Talk of canceling it, talk of black boxes being able to be rigged, it's spooky as anything.

[bluestateguy]

10. To "Hot Tub" Tom DeLay: You Lost. GET OVER IT!!!

Sounds like somebody is being a sore loser, only this time no recount was necessary.

I wonder how Hot Tub Tom feels when courts invalidate elections, stop recounts and look the other way when black people are intimidated from voting.

[2Design]

12. these guys are eliminating every check and balance their is...

they want to make sure those justices who over turned and forced them to accept white/black marriage....can not do the same thing with gay marriage....

these evil people have found a way to destroy our constitution and every thing it stands for and call it law.

[LastLiberal in PalmSprings]

14. A brief refresher is in order for Tom Delay

Congress for Kids would be a good place to start:

By creating three branches of government, the delegates built a "check and balance" system into the Constitution. This system was built so that no one branch of our government could become too powerful.

Each branch is restrained by the other two in several ways. For example, the president may veto a law passed by Congress. Congress can override that veto with a vote of two-thirds of both houses. Another example is that the Supreme Court may check Congress by declaring a law unconstitutional. The power is balanced by the fact that members of the Supreme Court are appointed by the president. Those appointments have to be approved by Congress.

[DaveSZ]

16. fascist

.

[radfringe]

17. so the GOPers want to expand Fed. goverment powers?

I thought this was the party that wanted SMALLER government? Apparantly not, so while we are expanding Fed. government -- how about more oversight and enforement powers regarding corporations, stock trading, pollution standards, product liability etc....

ooops my bad, forgot that GOPers want government out of the boardrooms and into the bedrooms....

just my 2-cents: first they went after lawyers, and now they are going after the judges... it looks like they want to trash our whole judicial system.

[dusty64]

18. Isn't delay a criminal?

Why is he still in power trying to undermine the power of the judiciary? What a strange and fucked up place Washington has become.

[The Zanti Regent]

20. The political parties in America are Democratic and Nazi.

There is NO Republican party anymore.

[baldguy]

21. Delay needs to read the U.S. Constitution

Article IV, Section 1

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

[forgethell]

36. But what about

Article 3, Section 2

Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make

[iam]

22. This is the same old crap as before

Liberals lets conservatives define the argument again. The issue isn't GAY marriage it's marriage for ALL consenting adults. Even big-shot Democrats say stupid things like "gay marriage" when they should say "equal rights in marriage" or something similar. Jesus, we all know that a poll can be rigged simply on the wording of the question, why don't Liberals apply the same understanding to political slogans? Are most Liberals just plain stupid? Or do we want to be in a perpetual struggle for Liberty? EVERY WORD COUNTS!

[Commie Pinko Dirtbag]

44. Hmmm. "Universal Marriage". Republicans are against Universal Marriage!

Could that stick?

[OKNancy]

24. For some reason the picture with the article struck

me as funny.



Photo caption: Sen. John Cornyn (R-Texas), left, Rep. Jim DeMint (R-S.C.), center, and Sen. Wayne Allard (R-Colo.), supporters of a constitutional ban of gay marriage, await a press briefing in Russell Park after yesterday’s vote.

(Edit to add caption.)

[Chovexani]

32. It does sort of look like a wedding reception

:silly:

[bushisanidiot]

25. The RNC, Frothing at the mouth Hatred for everyone who doesn't fall lock

step in line with them is going to be the downfall of their party.

I hope they keep it up. It just makes them look like asses..

[MallRat]

26. So, in other words, DeLay wants to force it as a state issue?

If so, then he's in diametric opposition to the White House on this.

I suppose if cases pertaining to gay marriage involve interstate issues (reciprocity, perhaps?), then this move by DeLay would, what? Force all of those cases directly to the US Supreme Court?

Are there any law students or lawyers who can enlighten us here? :shrug:

I don't get it. But the notion of stripping jurisdiction away from the courts simply because you don't like their decisions is absolutely terrifying. Why have a Federal Court system at all?

-MR

[geek tragedy]

28. Very dubious constitutionally

The issue really hasn't been tested in the courts, mainly because Congress hasn't passed such legislation in a long, long, long, long time.

However, it is utterly absurd to suggest that Congress can exempt itself from court review, or that it can forbid federal courts from reviewing cases involving constitutional rights.

This legislation won't pass Congress though--it's just rhetorical red meat for the American Taliban.

[relaf]

39. state courts have jurisdiction over federal law cases

Folks-

Having just taken Con Law and Civ Pro, I can assure you that state courts are courts of general jurisdiction. Hence, federal laws can be challenged in state court. They reason fed laws now almost always end up in federal court is because of a statute allowing for removal from state court to federal court any question of federal law. In fact some federal laws must be heard in state court, I can't remember an example, but I think some of the railroad laws from the turn of the century are federal, but must be heard in state court.

Congress can and has limited and expanded the federal courts jurisdiction from time to time. Eliminating federal jurisdiction over the pledge/gay rights/whatever will do nothing except put the cases to the state courts. A final state supreme court decision on these matters is appealable, with discretion of course to the USSC. So it is possible to have 50 states interpret a federal law 50 ways, until the USSC steps in and makes a final decision.

Also, the full faith and credit clause, only applies to final decisions of tribunals, NOT things like marriages which are not a decision. A better tract to go with for gay marriage is the 14th ammendment due process of law, or equal protection of the law clause. Hope this helps. Other lawyers/law students please critique me if you feel ive made an error.

m

[geek tragedy]

41. State courts have no authority to declare an act of Congress

unconstitutional--Supremacy Clause. Same goes for any action by the executive.

[relaf]

42. not sure about that, have to get my con law book out

I think that is incorrect. The supremacy clause is the any act of the US Congress pre-empts a similar state act. It does not de facto make a federal law consitutional. As I said, absence congress giving federal courts jurisdiction exclusively, or with discretion, the state court can hear any case or controversy.

Regarding executive action....could say the steel seizure case been heard initially in state court? I think so.

If you want my two cents, I think federal court/state courts have way too much overlap. I personally would get rid of most of the federal courts, at least for diversity and criminal, and keep them for federal question maybe.

M

[geek tragedy]

45. The Supremacy Clause (full text):

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.

Any possibility for such a debate ended in 1832.

[kodi]

48. the 14th is the place this right resides

i figure that banning "gay" marriage strikes at equal protection under the law, since it is not the state of being of the person who wants to marry that is at issue, but the sex of another person that determines the right of marriage for that first person.

john has a right to marry jane, john has no right to marry bob?

bob's sex determines john's right to marry?

has there ever been a law upheld that states an adult's rights are predicated upon the state of being of another person?

only slavery had anything like it.

[Amarant]

52. Nope

"Also, the full faith and credit clause, only applies to final decisions of tribunals, NOT things like marriages which are not a decision. A better tract to go with for gay marriage is the 14th ammendment due process of law, or equal protection of the law clause. Hope this helps. Other lawyers/law students please critique me if you feel ive made an error."

Full faith and credit is why your Texas drivers license is valid in New York. Same for why your heterosexual marriage is.

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. "

Of course congress can rule marriage is not included per this paragraph as well. But if they want to rule ONLY same sex marriage not recognized between the states then you have an equal protection issue.

[merh]

31. Do you think for one minute that the Supremes are going to

sit still for this. Publicly they may remain quiet, but boy oh boy, I bet they are fuming at the idea that delousy and his bunch of thugs want to load them up to hear all of these cases.

[librechik]

27. For gods sake people, only think about the fear of gay marriage!

And "Under God" is a HUGE Problem!

Don't think about the economy, the war, unemployment, outsourcing, declining infrastructure, healthcare or education!!!!

Seriously!

Back to GAY MARRIAGE!!!

[jdj]

49. The head fundimullah, James Dobson,

and his 'F@ck us with the Family' cult have made this their battle cry.

I irony here is almost unbearable. I mean for so many years only the radical faeries and leather boys could even get on the news and in the papers, cause they were screeching about how immoral us queers are. Now, gays are asking for nothing more than traditional "family values" and the legal status to back it up, and these people still say no. You'd think they'd be out in the streets proclaiming a moral victory in that they've "reformed" gays into more "wholesome" ways of living (or whatever...), instead, this shows them for the straight up bigots that they really are.

I think the fundi-gasm is over now. Really. I think 9/11 strengthened it, and it built and plateaued, but then the torture pictures came around in the afterglow and brought everyone back to the brutal reality that the repugs are no more moral than anyone, they just act like they are. This may spell the eventual death knell for this party, or we may go into a three party system, since ideological and fiscal conservatives may have to divest themselves of more and more fundimonsters as time goes on.

[TrogL]

29. Piss off SCOTUS at your peril

If they keep this up they're gonna piss off even the hard-liners. They've already been feeling their oats. Imagine if they really get pissed off.

[CBHagman]

35. They're not doing anything to prevent a chemical attack...

...yet they're going to force their will on the courts.

Today I read yet another article on the fact that this country is in no way prepared against a possible attack on chemical tankers that pass by rail through major cities, including Washington, D.C. These containers are quite vulnerable to tampering or attack, and the results could be devastating (i.e., Bhopal-like numbers of deaths -- hundreds of thousands, or millions).

Yet the Senate wasted time this week on FMA, and now DeLay (may his name be ever cursed) is prancing around with this. No one's going to care if there's another terrorist attack believe me. There won't be any lifestyles left to preserve in some areas.

Call the House and Senate and raise unadulterated hell about the waste of their time and effort.

[atreides1]

37. If Memory Serves

I believe that Congress tried this same manuever in the 19th Century, and they got their asses handed back to them by the Supreme Court.

I'm willing to bet that the SCOTUS will not allow Congress to lessen any of the powers of the federal court system.

[rocktivity]

38. To bad George Steinbrenner didn't think of this

He could have long since banned any team that defeated the Yankees!

:headbang:
rocknation

[Waverley_Hills_Hiker]

40. This is potentially a big deal.

This jurisdiction stripping bill could be a real big deal.

The states could be as repressive as they want to be with gays & lesbians, including passing whole bodys of restricive and discriminatory legislation, including new laws outlawing same-sex sex, and there would be no recourse to the Federal courts.

[quaker bill]

50. What seems interesting about it is

that if no other federal court has competent jurisdiction, would the cases default directly to the Supreme Court? It is fairly clear that the congress cannot limit their jurisdiction.

It seems fairly untenable, but I would bet if they do it, the Supreme Court will make a decision that would cut their work load dramatically. Equal protection under the law is a fairly simple and fundamental concept under the constitution.

If the neo-cons f with the courts, I would place a dollar on the notion that SCOTUS will have the final say in the matter and they will slap these boys down hard.

There is a matter of institutional pride involved here.

[Rose Siding]

51. Wouldn't the Supremes strike it as a civil liberties issue?

I mean the law itself has to be Constitutional, doesn't it?

This court has already proven it has an aversion to the judiciary not having its rightful seat at the table.

[struggle4progress]

53. Passing a federal law to define marriage? Now I KNOW ...

these people are posturing buttheads. Clinton signed DOMA into law back in September 1996, a few months after it passed both houses of Congress. The wingnuts are so desperate for an issue that they're threatening to do something that ... that ... hey! we did that eight years ago!

"Defense Of Marriage Act" 5/96 H.R. 3396 Summary/Analysis

<snip>
The Defense of Marriage Act (DOMA) does two things. First, it provides that no State shall be required to give effect to a law of any other State with respect to a same-sex "marriage." Second, it defines the words "marriage" and "spouse" for purposes of Federal law.

The first substantive section of the bill is an exercise of Congress'
power under the "Effect" clause of Article IV, section 1 of the
Constitution (the Full Faith and Credit Clause) to allow each State (or other political jurisdiction) to decide for itself whether it wants to grant legal status to same-sex "marriage." This provision is necessary in light of the possibility of Hawaii giving sanction to same-sex "marriage" under its state law, as interpreted by its state courts, and other states being placed in the position of having to give "full faith and credit" to Hawaii's interpretation of what constitutes "marriage." Although so-called "conflicts of law" principles do not necessarily compel such a result, approximately 30 states of the union are sufficiently alarmed by such a prospect to have initiated legislative efforts to defend themselves against any compulsion to acknowledge same-sex "marriage."

This is a problem most properly resolved by invoking Congress' authority under the Constitution to declare what "effect" one State's acts, records, and judicial proceedings shall have in another State. Congress has invoked this authority recently on two other occasions; in the Parental Kidnaping Prevention Act of 1980, which required each State to enforce child custody determinations made by the home State if made consistently with the provisions of the Act; and in the Full Faith and Credit for child Support Order Act of 1994, which required each State to enforce child support orders made by the child's State if made consistently with the provisions of the Act.

The second substantive section of the bill amends the U.S. Code to make explicit what has been understood under federal law for over 200 years; that a marriage is the legal union of a man and a woman as husband and wife, and a spouse is a husband or wife of the opposite sex. The DOMA definition of marriage is derived most immediately from a Washington state case from 1974, Singer v. Hara, which is included in the 1990 edition of Black's Law Dictionary. More than a century ago, the U.S. Supreme Court spoke of the "union for life of one man and one woman in the holy estate of matrimony." Murphy v. Ramsey, 114 U.S. 15, 45 (1985).
<snip>
http://www.lectlaw.com/files/leg23.htm