Barton: Disband Courts That Rule For Marriage Equality

As the right wing continues to rail against same-sex marriage and the federal courts that have ruled in favor of it, David Barton says it’s trivially easy for Congress to put a stop to it. They can just strip their jurisdiction to hear such cases or disband the courts entirely.

Responding to a question from a listener on what steps Congress can take to rein in the judiciary on this issue, Barton declared that Congress has several options: it can pass a law declaring that federal courts cannot hear gay marriage cases, it can pass a law that says that no federal money can ever be used to enforce a ruling from the Supreme Court in favor of gay marriage, or it can simply abolish any court, outside of the Supreme Court, that issues any ruling for gay marriage.

“All Congress has to do,” he said, “is pass a law saying, ‘you know, we saw the Northern District of Georgia struck down the marriage law; we’re abolishing the Norther District of Georgia court. It doesn’t exist any more.'”

The reason that Congress hasn’t already taken such steps, Barton explained, is because members of Congress are products of “our government education system” and therefore never learned this … which is why he is being brought to Washington, D.C., to teach it to them.

“I was at a conference recently where I was speaking on judicial myths,” he said, “and I just quoted from the Founding Fathers and the Constitution and quoted from the Founders’ own writings and congressmen said ‘we never heard that’ and so they’ve asked me to come to D.C. and do a training for them on ways to limit judicial activism”

Technically, he’s correct. Congress does have the power to strip the federal courts of jurisdiction to hear such cases and they do have the power to disband any court they’d like other than the Supreme Court. But in the real world, a place Barton doesn’t like to visit because reality scares the hell out of him, that simply is not going to happen. Even if they had the votes in Congress to do it, and they don’t, it still wouldn’t happen. This is a fantasy.

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  • colnago80

    But if the SCOTUS upholds the lower courts same sex marriage decisions, then a law won’t do it. It would require a Constitutional Amendment to overturn the SCOTUS decision.

  • StevoR

    Judicial activism? Like declaring that Corporations are actually human beings?

  • StevoR

    So if you don’t like the umpire’s decision -sack the umpire!

    Oh & never mind the will of the people who you supposedly represent and who generally it turns out disagree with your extremist hateful ideology.

    Seems some one is really forgetting their place and how the system is meant to work here ..

  • Artor

    …I just quoted from the Founding Fathers and the Constitution and quoted from the Founders’ own writings and congressmen said ‘we never heard that.’

    They never heard that, because I’m giving 100 to 1 odds that Barton made most of it up from whole cloth. Bullshit, lies, and misrepresentations are his stock in trade.

  • John Pieret

    This line of attack on civil rights laws, separation of church and state and anything else the wingnuts don’t like, has been around for decades. It is still, however, the most dangerous potential threat to constitutional rights in the country today. All it would take is a Congress (including a Senate that was filibuster-proof or eliminated the filibuster) and a President willing to sign legislation wildly popular with certain political bases, to essentially gut the 14th Amendment and leave virtually all questions of due process, equal rights and church-state issues to the state courts and legislatures.

    Talk about a Bad Moon Rising …

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Oh, come on! You Liberals are at least as bad, allowing a so-called “independent judiciary” to overrule the Will of the People, based on so-called “the Constitution”?

  • Pierce R. Butler

    Congress does have the power to strip the federal courts of jurisdiction to hear such cases …

    IANAL, but – izzatso? Has this been enacted and adjudicated in any other area?

  • malta

    IANAL, but – izzatso? Has this been enacted and adjudicated in any other area?

    Not too long ago Congress tried to strip the federal courts of the right to hear cases from prisoners at Guantanamo Bay. The Supreme Court ended up knocking it down in Boumediene v. Bush. There are a lot of different ways to read the decision, but I think the general view is that the court isn’t going to sit back and let Congress stop the court from protecting Constitutional rights.

    That said, the most famous jurisdictional limit on the Supreme Court is that it has no army to enforce its decisions.

  • raven

    Barton is assuming that weird old fundie xian white men are always going to rule the USA.

    Probably not. The USA is on trend to be majority nonwhite in 2043 and majority nonxian in a few decades. It’s already majority female.

    If they want to rule by the sword of gutting the judicial system, they might find the groups that they oppress and hate end up holding that sword.

    According to one of the latest polls, fundie xians only make 26% of the population. And 10-20% of them aren’t far right extremists. Hard to believe but a few of them voted for…Obama. Barton doesn’t even represent the majority of Americans now.

  • http://www.facebook.com/den.wilson d.c.wilson

    Raven@9:

    Barton and his ilk have never represented a majority of Americans. Despite the fantasies he spouts, there has never been a time in U. S. history where Christian fundamentalists were a majority of Americans. What he does represent, however, is a group that can be counted on show up at the polls in sufficient numbers to tilt a close election in their direction.

  • raven

    My reading of this is that, if they behead the courts (very Moslem terrorist-like IMO), then the states get to do whatever they want to whoever they want.

    Then the USA has a refugee problem just like the middle east. Millions of people will flee fundie-land for the coasts.

    Well shoot, we already have that. California has been overrun by people from the flyover states escaping cold winters and terminal boredom. And it is showing. We don’t really have a water shortage problem. We have 15 million too many people.

  • John Pieret

    malta:

    Yes, Boumediene is a hopeful sign that SCOTUS will not allow Federal courts to be stripped of all jurisdiction of constitutional issues but it was, ultimately, a narrow question of whether habeas corpus extends to territory not officially part of America but controlled by the American government. The same Congress and President I spoke of above could change SCOTUS’ composition to the point it would be glad to cede everybody’s rights to state or local governments.

  • D. C. Sessions

    The USA is on trend to be majority nonwhite in 2043 and majority nonxian in a few decades. It’s already majority female.

    And how is that “majority female” showing up in the government? How did the majority African American populations of Southern States show up in their governments? How is Texas doing with its near-majority of Hispanics?

    For that matter, how is the Democratic majority in Michigan doing?

  • david

    “Even if they had the votes in Congress to do it, and they don’t, it still wouldn’t happen. This is a fantasy.”

    Are you saying there’s a limit to the stupidity of congressional republicans?

  • raven

    And how is that “majority female” showing up in the government? How did the majority African American populations of Southern States show up in their governments? How is Texas doing with its near-majority of Hispanics?

    Good question. I don’t know but wish I did.

    The saying in Texas is, “if the Hispanics and women ever show up to vote, the GOP is done for”. OK, so where in the hell are they?

    It’s not that way everywhere and not all the time. The west coast is one such place. And women and minorities elected Bill Clinton twice and Obama twice.

  • eric

    @14: the President would veto it.

    Probably the scariest option would not be the first or third, but the second. They could attach a very low judicial budget to some other critically important bill (say, a bill raising the debt ceiling a day or two before the time limit), with earmarks ensuring the money goes only to the courts they approve of. In the last few years, the GOP has flinched first in such games of chicken but that doesn’t mean they always will.

    As an extreme response, they could just not pass a judicial budget at all, in effect causing the budget for the branch to go to zero. That is immune to veto, as only congress can push a bill to the president in the first place. Frankly, I can’t imagine that happening.

  • llewelly

    The saying in Texas is, “if the Hispanics and women ever show up to vote, the GOP is done for”. OK, so where in the hell are they?

    The organization most effective at getting Hispanics to vote was destroyed by a fake video created by GOP agents. And the Democrats, in a 12-dimensional chess move so brilliant only a Kossack could explain it, stood around and watched.

    That’s only one of dozens examples; practically all the claims made to drive “voter id” laws are also lies.

    It’s time to realize that Hispanics don’t show up to vote because they’re lazy, they don’t show up because the GOP is very good at making sure they don’t show up.

  • StevoR

    @ ^ llewelly : I think you meant :

    “It’s time to realize that Hispanics don’t don’t show up to vote because they’re lazy, they don’t show up because the GOP is very good at making sure they don’t show up.”

    Or maybe the reason Hispanics don’t show up to vote isn’t because they are lazy but rather because the Republicans are very good at stopping them form showing up.

    Would that be correct? I don’t think you are intending to say they don’t vote because they are lazy but that sentence could be construed that way.

    I also think its likely there are a few reasons for this maybe including lack of Hispanic politicians, cultural and educational pressures or lack of pressures to vote and no doubt other things too – I don’t know and suspect a range of reasons for a range of individuals.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    THE HISPANICS DONT SHOW UP TO VOTE BECAUSE THEIR TOO BUSY DESTROYING AMERICA AND EVERYTHING IT STANDS FOR!!! PLUS THEY HAVE TO PICK UP AN EXTRA SHIFT AT THE MEAT PACKING PLANT TO MAKE ENDS MEET FEEDING ALL THEIR ANCHOR BABBIES!!!

    AND YET EVEN WITH ALL THE REPUBLICAN PARTY HAS DONE FOR THEIR EMPLOYERS AND THE BORDER PATROL THEY STILL WONT VOTE GOP!!!

  • llewelly

    StevoR, thank you, my sentence was unclear.

  • dingojack

    Stevo – I’d say:

    ‘Rather than group W not doing activity X for reason Y as Party Z thinks; group W actually doesn’t do activity X because Party Z actively prevents them from doing it.’

    It’s more long-winded, but avoids the awkward double negative. [/grammar nerd]

    :) Dingo

  • StevoR

    @ ^ Dingojack : Yep. & no worries, llewelly #20.

  • ttch
  • Nihilismus

    In the situation where a Congress wants to strip power from inferior courts but views the Supreme Court as on its side ideologically, there’s not much recourse for somebody affected negatively by the lack of review. However, if the goal of Congress is to prevent an ideologically-opposing Supreme Court from exercising jurisdiction, there is at least one workaround to get the case heard in the Supreme Court. Basically, a state would have to institute a criminal or civil case against a person who was not a citizen of that state, that at least in part involves the law/issue that Congress tried to insulate, at which point the case moves into the original jurisdiction of the Supreme Court, which could then decide to take the case.

    Most likely, the state and the non-state-citizen would be colluding to achieve this result. For this thread’s issue, for example, a state could institute a tax-related case against a same-sex married person who took a marriage tax benefit despite the state not recognizing their out-of-state same-sex marriage. The case would be in the Supreme Court’s original jurisdiction (if it chose to exercise it), and since the issue of whether the state has to recognize the out-of-state marriage is relevant to the case, the Supreme Court could decide the constitutional question.

    Of course, all it means for a court to make a ruling is that it is signaling that it will make the same ruling if the issue arises again, so typically all inferior courts follow the ruling, and legislators and executive-branch officials don’t bother with actions that won’t get their result. But in a situation where the Supreme Court can only hear some of the cases related to an issue, then even if the Supreme Court makes a decision regarding the interpretation of a particular constitutional provision, legislators and executive-branch officials could still decide to bring individual cases that they know fall outside original jurisdiction, yet involve the same issue, knowing that some other court will have the final word in that particular situation. It would not be unlike having two circuits having contradictory rulings on the same federal law, with the law varying depending on which circuit you were in.

  • http://essaressellwye.tumblr.com Hershele Ostropoler

    How would Federal money be spent to enforce a pro-marriage decision? That is, how might such a decision entail monies to be spent by the Federal government?

  • abb3w

    Congress could only strip the courts of jurisdiction by passing a law, and they’re getting to the point where doing that even to name a post office is a challenge. Such a law might get a simple majority vote in the House, but would be unlikely to obtain the 3/5 of votes in the Senate sufficient for debate cloture; and President Obama would be almost certain to veto, were it to pass both. Barring another state funeral in California or New York, it’s unlikely that the 2/3 favorable vote needed override could be obtained in the House, let alone the Senate.