As the Supreme Court hears oral arguments on whether states have the right to define marriage as they see fit and whether to recognize same-sex marriage performed in other states, one congressman is looking to take the issue away from the courts.
Rep. Steve King, R-Iowa, is sponsoring the “Restrain Judges on Marriage Act of 2015”.
“If my bill becomes law, then the states will make the decision from that point forward on marriage. Any enforcement funds would also be blocked. In the end, state would decide what marriage is . There’s only two questions: what is marriage and who’s going to decide?” asked King.
“Not nine judges, or more likely five of nine judges, but the people need to make a decision on marriage,” he said.
How would the bill accomplish this, given that many question whether the legislative branch can dictate what the judicial branch can and cannot review? King believes the power is clear.
“My bill just utilizes the constitutional authority that’s drafted into the original version of the Constitution by our founding fathers that provides for Congress to determine the conditions by which the federal courts can hear a case,” said King.
Specifically, the “Restrain Judges of Marriage Act of 2015” would immediately remove any marriages cases from the federal court system, including cases already pending or any filed on or after the date the King bill would take effect. It also withholds any taxpayer money for the federal government to deal with any such cases.
“All courts are created by the United States Congress, including the Supreme Court. The Supreme Court is the only court required by the constitution. The balance of the federal courts are created by Congress. If they can be created by Congress, they can also be managed by Congress,” said King.
King cites Article III, Section 2 of the Constitution for the basis of his legislation. The germane part reads:
“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
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.”
King says there is a difficult history of the federal courts trying to solve issues in a manner the public refuses to accept. First and foremost on that list is the 1857 Dred Scott decision that determined Scott was someone’s property and the court ordered his return. King says it took a bloody Civil War, a civil rights act of 1866 and two constitutional amendments to ensure that slavery was abolished and that blacks in America were entitled to all the rights and benefits of citizenship.
He says the 1973 decision legalizing abortion met with the same reaction.
“We also saw Roe v. Wade and what they did when they said abortion on demand is fine. We’ve been fighting that now since 1973. The court should not be making these big decisions. They need to be decisions of the people. That’s something we should know from history and something we should know from reading our Constitution,” said King.
He says the Supreme Court is precariously close to going down that same road.
“Why do we think we’re going to live under judge-made law when they do this to the institution of marriage, which is the essential unit, the building block of our society and has been for thousands of years. To think that the arrogance of a court could rewrite that when the voice of the people could not?” said King.
King is ardently pro-traditional marriage but he says if same-sex marriage proponents used the system the right way, he have to grudgingly accept it just as he did in Iowa, but only after he personally sued the governor for doing it the wrong way.
“We had a situation in Iowa where there was a governor who thought he could legislate in a similar fashion. I took him to court and sued him successfully and they vacated his executive order,” said King.
“About eight or nine years later, they elected different majorities in the house and senate and for governor. They passed that through as a matter of law. They never heard a word from me at that point because it was the decision of the duly elected representatives of the people,” he said.
The odds of King’s bill becoming law are not good. The votes would almost certainly not be there to override a veto from President Obama. Far before that, King admits there’s no guarantee Republican leaders will take up the bill.
GOP leaders have gone largely silent on the marriage debate since the polls have turned against traditional marriage supporters. House Speaker John Boehner said the party would most likely not weigh in at all on the case currently before the Supreme Court.
But King says the public can make a big difference.
“I think leadership, if they hear enough requests from the public to push this thing, then they will. The sheer force of logic doesn’t seem to have the same effect as I thought it did when I was a young, purely idealistic man. It takes the force of politics as well,” said King.