FOLLOWING THE Senate's burial last week of a proposed constitutional amendment to ban gay marriage, foes of same-sex marriage are back with another radical proposal. This time they are pushing a bill that would prevent federal courts from hearing challenges to a federal law that limits gay marriage. The bill, scheduled for a vote tomorrow, is an attack on the basic function of the courts in American society. Making this attack all the more ominous is House Majority Leader Tom DeLay's stated intention to promote similar bills to bar court challenges to the Pledge of Allegiance and, potentially, on other social issues. This is as wrong as wrong can be. The House should not strip courts of their authority in order to protect bad policy -- or even good policy -- from constitutional scrutiny.
At its broadest level, the debate over gay rights -- and marriage rights particularly -- is a debate over whether discrimination according to sexual orientation is a civil rights issue. Gay marriage is, at one level, a policy question, but it also presents legal issues: Must marriage rights, under state or federal laws, apply equally to partners of the same gender? The federal Defense of Marriage Act says that no state can be forced to recognize gay marriages performed in another state. An inevitable question after Massachusetts legalized same-sex marriage is whether this federal law can withstand constitutional scrutiny. The new bill would prevent the courts from answering that question -- effectively shutting them out of the debate over gay marriage and permitting Congress to act as it pleases, whatever the Constitution may say.
Just how far Congress can go in preventing judicial consideration of its actions is a thorny constitutional question. But even if Congress were to have it within its power to enact this law, it should refrain. Considering the constitutional validity of congressional enactments is a central function of the federal judiciary. Congress should not be in the business of obstructing that. Congress has considered stripping the courts of jurisdiction over abortion and other polarizing issues, but it has stopped short of testing its own power to block judicial review of constitutional questions. In their zeal to stop gay weddings, legislators shouldn't drive off the cliff this time either.