Therefore, Congress should immediately add a third section to Defense of Marriage Act withdrawing jurisdiction from all federal courts to hear any challenge to the act. Don't let anybody tell you that Congress can't tell the federal courts what cases they can and cannot hear.
Article III, Section 2 states: "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."
Thus, Congress can make "exceptions" to the types of cases the Supreme Court can decide.
Article III, Section 1 states: "The 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." Article I, Section 8 states: "The Congress shall have power ... to constitute tribunals inferior to the Supreme Court."
Thus, all federal courts except the Supreme Court were created by Congress. Congress defined their powers and prescribed what kinds of cases they can hear, and so Congress can redefine, re-prescribe, uncreate, limit, regulate and even abolish those federal courts.
The accusation will be made that withdrawing jurisdiction from the federal courts is an attack on their power and indicates we don't trust their decisions. That is exactly right, we don't, especially after Casey, Romer and Lawrence, plus the lower court decisions on the Pledge of Allegiance and the Ten Commandments.
Withdrawing jurisdiction from the federal courts won't prevent activist state court judges from legalizing same-sex marriages, as courts in Massachusetts and New Jersey are now considering. That will require a constitutional amendment.
But the Defense of Marriage Act could be dealt with immediately by a simple majority vote and would send a clear message to the courts that the U.S. people are not going to submit to rule by unelected judges instead of by our elected representatives.
As a practical matter, it should be easiest for Congress to move rapidly before adjournment to pass H.R. 2028, a bill sponsored by Rep. Todd Akin, R-Mo., to strip the federal courts of power to rule on cases involving the Pledge of Allegiance. Akin already has 221 co-sponsors in the House, and Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, is the sponsor of the companion bill, S. 1297.
Tell your representatives to Congress to act now. We cannot let activist federal judges get by with cooperating with the pressure groups that are waging war on our most sacred institutions.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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