Wednesday, April 08, 2015

The Restraining Order

Let's talk a little more about this idea of a "Restraining Order" to prevent the SCOTUS or other federal courts from ruling on gay marriage.

The basis for the idea comes from Article III, Section 2, Clause 2 of the US Constitution which states:

"In all the other Cases before mentioned, 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."

So the idea is that congress could make rulings on marriage, including rulings on gay marriage, an exception.

The problem with that idea, and Ted Cruz should damn well know this, is that congress cannot limit the essential functions of the court including the function of the court to protect constitutional rights.

So, while congress might be able to restrict the court's jurisdiction on the non-constitutional aspects of marriage, gay rights/marriage IS a constitutional rights issue so restricting the courts appellate jurisdiction on it would be unconstitutional.

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