House vote doesn't only threaten gays, page 1

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"House vote doesn't only threaten gays"

The Atlanta Journal-Constitution
Published on: 07/26/2004

Every politician has -- or should have -- a line that he or she will not cross just to gain political advantage. Even for the most ambitious and ruthless, there should be some things that are off-limits, some steps that aren't worth taking because the potential damage to the nation outweighs any political gain.

But like many Americans, I have a sneaking suspicion that the line has shifted considerably. In fact, after last week's events in the U.S. House of Representatives, you have to wonder if it still exists at all for some people.

Frustrated by the Senate's failure to produce even a majority of votes in favor of a constitutional amendment banning gay marriage, House leaders decided to take a more controversial approach. Citing an obscure and largely untested provision of the U.S. Constitution, the House voted 233-194 to bar the Supreme Court from considering the constitutionality of the Defense of Marriage Act, a 1996 law dealing with gay marriage.

That is a power grab of breathtaking consequence. If Congress has the authority to tell the Supreme Court that certain issues are off-limits, it would give legislators a free hand to do whatever they wished, without worrying about whether it violated the Constitution. The whole idea of a separation of powers could be rendered null and void if that happened.

And unfortunately, it could. The provision in question, Article III, Section 2, gives the federal courts the power to decide a broad range of cases, including challenges to the constitutionality of federal laws. However, it also grants the courts that power "with such exceptions, and under such regulations as the Congress shall make."

Theoretically, that allows Congress to pass a law -- say, making it a felony to criticize members of Congress -- and then forbid the courts to review such a law. It could pass a law making Christianity the national religion, and bar the courts from hearing a challenge. It could allow government to tap our phones without a warrant, or toss dissidents into prison without trial, and refuse to allow the courts to intervene.

That's why the provision has remained obscure and largely untested. Previous generations of politicians, even in the heat of intense battle, have understood and respected the potential damage it could do. They saw it as a Pandora's box that once opened could threaten not just our constitutional liberties but the whole concept of a balance of powers among the judicial, legislative and executive branches.

It's hard to know what our Founding Fathers envisioned with that provision, or whether they understood its possible implications. But if implemented as House Republicans now intend, it would have enormous ramifications on the system of government and concepts of justice that have evolved over the last 200 years.

In remarks on the House floor, U.S. Rep. Sheila Jackson Lee of Texas, a black woman, pointed out that if segregationists back in the '50s had dared to pass such a law barring judicial review of civil rights cases, there would have been no Brown v. Board of Education ruling that ended segregation in our public schools.

"[This bill] would deny judicial review to an entire class of citizens because of passing partisan passions, and it is willing to trample on our Constitution in order to do so," U.S. Rep. Carolyn Maloney of New York said. "The Republican leadership is trying to use a wedge issue to appeal to right-wing constituencies in a highly charged election year, and they are willing to trample on our Constitution. No issue is ever worth such a price."

As that debate and vote took place Thursday, the 9/11 commission was delivering its report to the president and the American people, pointing out that we had been vulnerable to attack on Sept. 11 because our nation's leaders had failed to act and had failed to treat terrorism as a priority. Shortly afterward, House Speaker Dennis Hastert said that it was unlikely that any action would be taken on the panel's recommendations this year.

It seems the House is too busy with other things.

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Jay Bookman is the deputy editorial page editor. His column appears Mondays and Thursdays.

There is no friend anywhere - Lao Tse