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This article originally provided by The New York TimesJuly 24, 2004A Radical Assault on the ConstitutionEditorial Majorities that are frustrated when courts stand up for minority rights have occasionally tried to strip them of the power to do so. This week, the House voted to deny the federal courts the ability to decide a key constitutional issue involving gay marriage. Such a law would upset the system of checks and balances and threaten all minority groups. It is critical that the Senate reject it. The Marriage Protection Act, which was passed by the House, 233-to-194, would bar federal courts from hearing challenges to parts of the 1996 Defense of Marriage Act. That law says states do not need to recognize same-sex marriages conducted in other states. Gay marriage opponents fear that the courts will hold that this violates the constitutional requirement that states recognize the legal actions of other states. The House's solution, stripping the federal courts of power, is one that opponents of civil rights and civil liberties have been drawn to in the past. Opponents of court-ordered busing and supporters of school prayer tried it. But even at the height of the backlash against the civil rights movement, Congress never passed a law that completely insulated a federal law from Supreme Court review. This radical approach would allow Congress to revoke the courts' ability to guard constitutional freedoms of all kinds. And although gays are the subject of this bill, other minority groups could easily find themselves the target of future ones. The House vote could be dismissed as election-year politics. It's highly unlikely the Senate will go along, and even if it did, there is good reason to believe the law would itself be declared unconstitutional. Still, even one house of Congress backing this sort of assault on the federal judiciary is an outrage.
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