Congressman Ernest J. Istook, Jr. (OK05) :: Press Release :: Istook Introduces National Marriage Law

This is completely off-topic, but I had to point it out. Here is a great example of legislative devolution. Once upon a time, we are told, people elected the best and brightest among them to Congress. Now, at least in the 5th District of Oklahoma and 35 (!) other districts, they send nincompoops like Ernest Istook (R) who have never heard of Marbury v. Madison, the United States Supreme Court's 1803 ruling that established judicial review. Regardless of what you think of gay marriage, this bill is the dumbest, most ignorant piece of legislative grandstanding in recent memory.

Istook, who is rabidly opposed to gay marriage, has just introduced what is called a "court-stripping" bill (named the "Marriage Unity Law") that would take away the subject matter jurisdiction of the federal courts to hear challenges to the Defense of Marriage Act. The point is this. First, a gay couple who got married under Massachusetts law will move to another state, say, Pennsylvania. They will ask to have their marriage recognized there under the Full Faith and Credit clause of the US Constitution. Pennsylvania will say, sorry, we don't have gay marriage here, and under the Defense of Marriage Act we don't have to recognize your Massachusetts marriage. The gay couple will then sue in federal district court in Pennsylvania to have the Defense of Marriage Act (a 1996 law signed by Bill Clinton) declared unconstitutional.

Enter the Marriage Unity Law. The bill repeats the main point of the Defense of Marriage Act: "Marriage in the United States shall consist only of the union of a man and a woman." Then it goes on to take away the jurisdiction of the federal district and circuit courts to hear challenges to that principle: "Except as provided in paragraph (1), no Federal or state court shall have jurisdiction to hear or determine a claim arising under this section."

Now, here comes the monumental ignorance. What is in paragraph (1), the exception to the "no jurisdiction" rule? Here it is: "The Supreme Court of the United States shall have original jurisdiction to hear and determine a claim arising under this section."

Every lawyer, every first-year law student, and every undergraduate student with a course in Constitutional Law under his or her belt knows that in Marbury v. Madison the Supreme Court used the power of judicial review for the first time to pronounce a law passed by Congress unconstitutional because it changed the original jurisdiction of the U.S. Supreme Court, something that can only be done by amending the Constitution.

Now, we have 36 people in the House of Representatives who know less about the most basic principle of constitutional law than the average political science undergraduate student. How can this be possible, when so many members of the House are attorneys? How can such a bill be introduced at all, and more to the point, how can 35 other people put their NAMES on it?