It is striking how much of the argument against marriage equality is rooted in hostility to the role of the federal courts in vindicating constitutional freedoms.  At the Supreme Court, defenders of discriminatory marriage laws contend that it should be up to the voters of a state whether to allow loving, committed same-sex couples the freedom to marry,  ignoring the fact that it is the role of the courts to prevent majorities in the states from denying protections that our Constitution secures to all.  Now, Representative Steve King (R-IA) has gone even further, introducing what he calls the “Restrain the Judges on Marriage Act.”  King’s bill would strip the federal courts, including the United States Supreme Court, of jurisdiction “to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, any type of marriage.”  In the Senate, Ted Cruz (R-TX) has introduced a similar bill, which is entitled the “Protect Marriage from the Courts Act of 2015.”  Both bills at their core are a frontal assault on judicial review, seeking to manipulate the jurisdiction of the federal courts as a last ditch effort to stop the Supreme Court from vindicating the Constitution’s guarantee of equality for all.  

King’s and Cruz’s bill are at war with the text of Article III of the Constitution, which provides that “[t]he judicial Power of the United States, shall be vested in one supreme court, and in such inferior Courts as the Congress may from time to time ordain and establish” and that “[t]he judicial power shall extend to all Cases . . . arising under this Constitution.”   The text of Article III vests “judicial power” in the federal courts, just as Article I and Article II vest legislative and executive power in Congress and the President, respectively.  As the text makes clear, the Supreme Court is the creation of the Constitution, not Congress.   The Supreme Court is the one court Congress cannot take away.

These proposals, like other jurisdiction stripping proposals, rests on the so-called Exceptions Clause of Article III, which provides that “the supreme Court shall have appellate Jurisdiction . . . with such Exceptions, and under such Regulations as Congress shall make.”   In 1868, in Ex Parte McCardle, the Supreme Court held that Congress could invoke the Exceptions Clause to take away jurisdiction over a then-pending habeas corpus case.  But even in that instance, Congress had not foreclosed all avenues for judicial review by the Supreme Court.  Indeed, that same year, in a factually similar habeas case, the Justices concluded that the Supreme Court had jurisdiction.

In more recent cases, most prominently the Court’s 2006 ruling in Hamdan v. Rumsfeld, the Justices have interpreted federal law to preserve Supreme Court review, recognizing that attempts to manipulate jurisdiction to frustrate judicial review raise grave constitutional questions.  Indeed, Justice Stevens’s majority opinion in Hamdan took pains to emphasize that the law in McCardle had only “foreclosed one avenue of appellate review.”

McCardle thus is not precedent for bills like King’s and Cruz’s that would strip all Article III courts of original and appellate jurisdiction to review the constitutionality of state statutes that deny core aspects of liberty and equality.    The jurisdiction stripping provision in McCardle preserved access to the Supreme Court; King’s and Cruz’s bills does not.  As their titles indicate, their purpose and design is to close the doors of all Article III courthouses to litigants seeking to challenge discriminatory marriage laws.  That would subvert the Constitution’s system of separation of powers, undermine its promise of access to courts, and threaten the rule of law. 

During the Constitutional Convention in Philadelphia, the Framers rejected the notion that enforcement of the Constitution and federal law could be left entirely to the state courts.  State courts, of course, could play a valuable role in enforcing federal law, as they were required to do by the Supremacy Clause, but the federal courts had to have the final word.   James Madison made this point crystal clear: “in controversies relating to the boundaries between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the general government.”    

A Supreme Court, the Framers concluded, was necessary “to decide all national questions which should arise within the Union” and to “control and keep the state judicials within their proper limits whenever they shall attempt to interfere with its powers.”   Congress cannot simply enact a law to overturn these key aspects of our constitutional structure.