Practice CAPT Exercise
Same Sex Marriage

For the in-class practice exercise (Thursday, February 14) please read and prepare articles 2, 3, and 5.

Toutant, Charles. "N.J. will recognize same-sex unions from abroad, but not all equally." New Jersey Law Journal.  (Feb 20, 2007): NA. Expanded Academic ASAP. Gale. Westport Public Library. 19 Oct. 2007 

With civil unions now the law in New Jersey, the state will recognize same-sex relationships formed under the laws of other states and foreign nations, but not all same-sex relationships will be treated the same, the state attorney general says.

In a formal opinion, Attorney General Stuart Rabner advised the State Registrar of Vital Statistics that the nature of the rights conferred by the other jurisdiction will determine how the relationship will be treated under New Jersey law.

The determination will be made by comparing the rights granted by the other jurisdiction to those under New Jersey's civil union statute, which took effect Monday, and its Domestic Partnership Act, which remains in effect pending a legislative commission's review of its continued viability.

The name chosen by the other jurisdiction for a same-sex relationship will not be controlling, Rabner said.

Same-sex marriages in Massachusetts, Canada, the Netherlands, South Africa and Spain would be treated automatically as civil unions, without the need to obtain a New Jersey civil union license.

Also to be recognized as civil unions are Vermont and Connecticut civil unions, California domestic partnerships and "civil partnerships" granted by Great Britain, Sweden, New Zealand and Iceland, because those places give same-sex couples the same rights and benefits as heterosexual marriage partners.

Where jurisdictions extend a narrower range of benefits to same-sex couples, such as the District of Columbia, Maine and Hawaii, New Jersey would grant recognition under its more limited Domestic Partnership Act - which, for example, makes no provisions for support of a financially dependent partner or equitable distribution of property in the event of a breakup.

Some More Equal Than Others

Rabner's opinion was hailed by some for broadening protections for gay and lesbian couples but also was criticized for downgrading same-sex marriages performed elsewhere to civil unions here.

Steven Goldstein, chair of Garden State Equality, an organization that advocates for gay and lesbian rights, says unequal treatment violates the equal protection mandate of Lewis v. Harris, 188 N.J. 415 (2006), in which the state Supreme Court found homosexual couples should equal access to the financial and social benefits granted by marriage.

"On the one hand, New Jersey treats all marriages of straight couples who come to New Jersey as what they are - marriages. On the other hand, New Jersey will not go out of its way to relabel and repackage all marriages of gay couples who come to New Jersey as something different," Goldstein says, adding that the unequal treatment would likely become the subject of litigation.

Some family law practitioners who concentrate on handling same-sex unions expect problems will arise when couples move from state to state. Westmont solo Stephen Hyland, for one, points out that if a couple married in Massachusetts relocates to New Jersey and then breaks up, the pair could obtain a civil union dissolution certificate here, but if either partner returns to Massachusetts, the court there would not be expected to recognize the New Jersey dissolution.

"They would still be married in the eyes of Massachusetts," Hyland says. "In terms of divorce in this country, we've always given full faith and credit to divorces granted in other states. I think a divorce needs to be granted, and not a dissolution of a civil union."

David Buckel of Lambda Legal, who represented the plaintiffs in Lewis, says New Jersey is under no legal obligation to treat out-of-state couples in same-sex marriages differently from heterosexual married couples.

But Buckel sees value in Rabner's opinion, saying it provides an important tool for couples seeking, for instance, to convince an employer to provide healthcare to both of them. "A marriage is at least a civil union in New Jersey. Civil unions are not marriages. That's going to be changed, but in the meantime what Attorney General Rabner confirmed is that the same things that flow from a New Jersey civil union will flow from a Canadian marriage," Buckel says.

In a footnote to his opinion, Rabner wrote that the Full Faith and Credit Clause of the U.S. Constitution does not impose an absolute requirement for each state to recognize acts and proceedings of other states. Recognizing Massachusetts' same-sex marriages as civil unions in New Jersey "both gives substantial effect to the Massachusetts relationships by providing all of the rights and obligations of marriage and comports with the intent of the New Jersey Legislature to provide those rights to same-sex couples through a civil union," Rabner wrote.

Rabner cited numerous locales that granted official sanction to same-sex relationships: Andorra, Colombia, Croatia, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Israel, Luxembourg, Norway, Portugal, Slovenia, Switzerland, Australia and parts of Argentina, Brazil, Italy and Mexico. He noted that terminology for recognition of same-sex couples varies widely, leaving little guidance for determining whether the status recognized is comparable to a civil union or a domestic partnership.

"Any interpretation of the Attorney General's opinion that suggests it is somehow in violation of the Lewis v. Harris decision is incorrect," says Lee Moore, a spokesman for Rabner. "The Attorney General's opinion provides equal protection for same-sex married couples. That is, it ensures couples married out of state will be afforded all the rights and benefits that would be afforded to them in the state of their marriage."

On Monday, municipal officials in some towns opened up for business despite the President's Day holiday to accommodate same-sex couples eager to register. A state Department of Health spokeswoman says estimates for the number of civil unions granted Monday would not be available for about a week.

Staver, Mathew D. "Why we need a federal marriage amendment. " USA Today (Magazine).  133.2712 (Sept 2004): 56(2). Academic OneFile. Gale. Westport Public Library. 8 Nov. 2007 

ALTHOUGH FOR DIFFERENT reasons, same-sex marriage advocates and some states' rights proponents oppose amending the Constitution to protect marriage between one man and one woman. While states' rights are of paramount importance, it nevertheless is necessary that the Constitution be amended to protect traditional marriage.

Marriage between one man and one woman is, and always has been, a Federal matter, and the very act of amending the Constitution is all exercise in states' rights. To sanction same-sex marriage, would be to say that there is no relevance to gender, and thus result in the abolition of gender. Indeed, many same-sex and transsexual proponents advocate its abolition, stating that the concept of male and female is an outdated, stereotypic model.

Society never has supported every conceivable combination of human relationships. Utah's battle over polygamy is instructive. In 1862, Congress passed the Moral Act, which prohibited an individual from having more than one spouse, disincorporated the Mormon Church, and restricted its ownership of property.

In Reynolds v. United States, the Supreme Court upheld the Act, stating that polygamy always has been "odious" among the northern and western nations of Europe, and from "the Earliest history of England polygamy has been treated as an offense against society." The Court noted that "it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion."

In 1882, Congress passed the Edmunds Act, prohibiting polygamists from holding political office and disqualifying them from serving on juries. In 1887, Congress passed the Edmunds-Tucker Bill. It required, among other things, wives of polygamous relationships to testify against their husbands. On Oct. 6, 1890, the Mormon Church officially approved a manifesto mandating that it no longer sanction polygamous marriages.

As a condition for admittance to the Union, Congress demanded the inclusion of antipolygamy provisions in the constitutions of Arizona. New Mexico, Oklahoma, and Utah. For all but Oklahoma, the Enabling Acts made clear that the these provisions were "irrevocable." Furthermore, in order to change their laws to allow polygamy, each state would have to persuade the entire country to alter the marriage laws. Idaho adopted the constitutional provision on its own, but the 51st Congress, which admitted Ohio into the Union, found its constitution to be "republican in form and ... in conformity with the Constitution of the United States." To this day, Arizona, Idaho, New Mexico, Oklahoma, and Utah state in their constitutions that polygamy is "forever prohibited."

The Supreme Court has ruled that a juror who has a conscientious belief that polygamy is permissible may be challenged for cause in a trial for polygamy. Anyone who practices polygamy is ineligible to immigrate to the U.S.

If same-sex marriage were sanctioned, it virtually would be impossible to ban polygamy. Moreover, allowing same-sex marriage would likely take society one step closer to legalizing polygamy and polyamory (group marriage). When Tom Green was put on trial for polygamy in Utah in 2001, various articles and editorials appeared in several prominent publications supporting the practice. The American Civil Liberties Union has tried to downplay the idea of a slippery slope between gay marriage and polygamy, defending Green during his trial and declaring its support for the repeal of all "laws prohibiting or penalizing the practice of plural marriage." Steven Clark, director for the Utah ACLU, stated, "Talking to Utah polygamists is like talking to gays and lesbians who really want the right to live their lives."

While states have been permitted to regulate the edges of marriage, such as the ceremonies, dissolution, support, custody and visitation, they never have been allowed to modify its very essence--the legal union of one man and one woman.

Marriage will be national one way or another. Either the courts will dictate marriage policy or the people will. If a constitutional amendment is not enacted, the courts no doubt will alter traditional marriage policy. Last year, four of the seven state court justices in Massachusetts concocted a right to same-sex marriage in that state's constitution. (The original constitution of Massachusetts was drafted by John Adams. The nation's second president and a devout Christian.) Acknowledging that neither the history of the constitution nor the state statutes envisioned same-sex marriage, tour of the justices nevertheless imposed their own will upon the entire state. The citizens of Massachusetts were, therefore, left with no other choice but to overturn this radical decision by a slate constitutional amendment.

On Sept. 21, 1996, Congress passed the Federal Defense of Marriage Act. This law declared that no state or territory is required to recognize a same-sex marriage sanctioned by another state or territory. While designed to ensure that the sovereignty of a state is not overridden by another state's same-sex marriage law, there is no guarantee that this law will be upheld by the courts. Considering the judicial activism of the Massachusetts Supreme Court, we dare not trust the courts to hold sacred the institution of marriage. Considering the mobility and the impact that marriage has on transactions between the states, we would find ourselves broiled for years in endless litigation over whether one state should accept the same-sex marriage sanctioned by a sister state.

The only way for the U.S. citizens to have a voice in the marriage dilemma is to exercise their right under the Constitution to enshrine marriage once and for all as between one man and one woman. To pass an amendment requires a two-thirds majority in the House and Senate. Three-quarters of the states then must ratify the amendment through their legislatures. Actually, the required number of states already has gone on record since 1996 declaring their support for traditional marriage by specifically enacting legislation protecting that institution while expressly banning same-sex unions. Although a number of states amended their constitutions, it is only by the passage of a Federal marriage amendment that the states may protect the will of the people. This controversy clearly is too important to be left to the whim of the courts.

Some contend that government should have nothing to do with marriage, and thus no longer should license it. In this way, official unions could consist of either private religious or secular ceremonial services sans state sanction. While this position might have some appeal on the surface, it fundamentally misunderstands the importance of marriage and its impact on society. The state always has been empowered to protect the health and welfare of its citizens. Thus, there are laws protecting individuals' personal security and property rights. Although the acts are consensual, there are laws regarding prostitution, gambling, and private drug use--because these private acts have public consequences. The same is true of marriage, which is not merely a personal, private act. Children are part of the equation, and, as such, the greater good comes into play.

In The Case for Marriage, Linda Waite and Maggie Gallagher write: "Marriage is not merely a private taste or a private relation; it is an important public good. As marriage weakens, the costs are borne not only by individual children or families but by all of us taxpayers, citizens, and neighbors. We all incur the costs of higher crime, welfare, education, and healthcare expenditures, and in reduced security for our own marriage investments. Simply as a matter of public health alone, to take just one public consequence of marriage's decline, a new campaign to reduce marriage failure is as important as the campaign to reduce smoking."

Mathew D. Staver, president and general counsel for the Liberty Counsel, Orlando, Fla., a national nonprofit litigation, education, and policy organization and vice president of Law & Policy for Liberty University, Lynchburg, Va., is the author of Same-Sex Marriage: Putting Every Household at Risk.

Smith, Alison M. "Same-Sex Marriages: Legal Issues." Congressional Research Service (CRS) Reports and Issue Briefs. . Congressional Research Service (CRS) Reports and Issue Briefs, 2006. NA. Academic OneFile. Gale. Westport Public Library. 8 Nov. 2007 

Same-Sex Marriages: Legal Issues

Massachusetts became the first state to legalize marriage between same-sex couples on May 17, 2004, as a result of a November 2003 decision by the state's highest court that denying gay and lesbian couples the right to marry violated the state's constitution.  Currently neither federal law nor any state law affirmatively allows gay or lesbian couples to marry. On the federal level, Congress enacted the Defense of Marriage Act (DOMA) to prohibit recognition of same-sex marriages for purposes of federal enactments. States, such as Alabama,  Arkansas,  Alaska, Georgia,  Hawaii, Kansas,  Kentucky,  Louisiana,  Michigan,  Mississippi,  Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon,  Texas,  and Utah have enacted state constitutional amendments limiting marriage to one man and one woman.  Twenty-three other states have enacted statutes limiting marriage in some manner.

Defense of Marriage Act (DOMA)

In 1996, Congress enacted the DOMA "[t]o define and protect the institution of marriage." It allows all states, territories, possessions, and Indian tribes to refuse to recognize an act of any other jurisdiction that designates a relationship between individuals of the same sex as a marriage. In part, DOMA states:

No state, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state, territory, possession, or tribe, or a right or claim arising from such relationship.

Furthermore, DOMA goes on to declare that the terms "marriage" and "spouse," as used in federal enactments, exclude homosexual marriage:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

Potential Constitutional Challenges to DOMA

Full Faith and Credit Clause

Some argue that DOMA is an unconstitutional exercise of Congress's authority under the full faith and credit clause of the U.S. Constitution. (24) Article IV, section 1 of the Constitution, the Full Faith and Credit Clause states:

Full Faith and Credit shall be given in each State to the public acts, Records, and judicial proceedings of every other State; and the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the effect thereof.

Opponents argue that, while Congress has authority to pass laws that enable acts, judgments and the like to be given effect in other States, it has no constitutional power to pass a law permitting States to deny full faith and credit to another State's laws and judgments. Conversely, some argue that DOMA does nothing more than simply restate the power granted to the States by the full faith and credit clause.  While there is no judicial precedent on this issue, it would appear that Congress's general authority to "prescribe ... the effect" of public acts arguably gives it discretion to define the "effect" so that a particular public act is not due full faith and credit. It would appear that the plain reading of the clause would encompass both expansion and contraction.  

Equal Protection

Congress's authority to legislate in this manner under the full faith and credit clause, if the analysis set out above is accepted, does not conclude the matter. There are constitutional constraints upon federal legislation. One that is relevant is the equal protection clause and the effect of the Supreme Court's decision in Romer v. Evans,  which struck down under the equal protection clause a referendum-adopted provision of the Colorado Constitution, which repealed local ordinances that provided civil-rights protections for gay persons and which prohibited all governmental action designed to protect homosexuals from discrimination. The Court held that, under the equal protection clause, legislation adverse to homosexuals was to be scrutinized under a "rational basis" standard of review.  The classification failed to pass even this deferential standard of review, because it imposed a special disability on homosexuals not visited on any other class of people and it could not be justified by any of the arguments made by the State. The State argued that its purpose for the amendment was two-fold:  to respect the freedom of association rights of other citizens, such as landlords and employers) who objected to homosexuality; and to serve the state's interest in conserving resources to fight discrimination against other protected groups.

DOMA can be distinguished from the Colorado amendment. DOMA's legislative history indicates that it was intended to protect federalism interests and state sovereignty in the area of domestic relations, historically a subject of almost exclusive state concern. Moreover, it permits but does not require States to deny recognition to same-sex marriages in other States, affording States with strong public policy concerns the discretion to effectuate that policy. Thus, it can be argued that DOMA is grounded not in hostility to homosexuals but in an intent to afford the States the discretion to act as their public policy on same-sex marriage dictates.

Interstate Recognition of Marriage

DOMA opponents take the position that the Full Faith and Credit Clause would obligate States to recognize same-sex marriages contracted in States in which they are authorized. This conclusion is far from evident as this clause applies principally to the interstate recognition and enforcement of judgments.  It is settled law that final judgments are entitled to full faith and credit, regardless of other states' public policies, provided the issuing state had jurisdiction over the parties and the subject matter.  The Full Faith and Credit Clause has rarely been used by courts to validate marriages because marriages are not "legal judgments."

As such, questions concerning the validity of an out-of-state marriage are generally resolved without reference to the Full Faith and Credit Clause. In the legal sense, marriage is a "civil contract" created by the States which establishes certain duties and confers certain benefits.  Validly entering the contract creates the marital status; the duties and benefits attached by a State are incidents of that status. As such, the general tendency, based on comity rather than on compulsion under the Full Faith and Credit Clause, is to recognize marriages contracted in other States even if they could not have been celebrated in the recognizing State.

The general rule of validation for marriage is to look to the law of the place where the marriage was celebrated. A marriage satisfying the contracting State's requirements will usually be held valid everywhere.  Many States provide by statute that a marriage that is valid where contracted is valid within the State. This "place of celebration" rule is then subject to a number of exceptions, most of which are narrowly construed. The most common exception to the "place of celebration" rule is for marriages deemed contrary to the forum's strong public policy. Several States, such as Connecticut, Idaho, Illinois,  Kansas,  Missouri, Pennsylvania, South Carolina, and Tennessee provide an exception to this general rule by declaring out-of-state marriages void if against the State's public policy or if entered into with the intent to evade the law of the State. This exception applies only where another State's law violates "some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common wealth."  

Conclusion

States currently possess the authority to decide whether to recognize an out-of-state marriage. The Full Faith and Credit Clause has rarely been used by States to validate marriages because marriages are not "legal judgments." With respect to cases decided under the Full Faith and Credit Clause that involve conflicting State statutes, the Supreme Court generally examines the significant aggregation of contacts the forum has with the parties and the occurrence or transaction to decide which State's law to apply. Similarly, based upon generally accepted legal principles, States routinely decide whether a marriage validly contracted in another jurisdiction will be recognized in-State by examining whether it has a significant relationship with the spouses and the marriage.

Congress is empowered under the Full Faith and Credit Clause of the Constitution to prescribe the manner that public acts, commonly understood to mean legislative acts, records, and proceedings shall be proved and the effect of such acts, records, and proceedings in other States. (93)

The Supreme Court's decisions in Romer v. Colorado and Lawrence v. Texas may present different issues concerning DOMA's constitutionality. Basically Romer appears to stand for the proposition that legislation targeting gays and lesbians is constitutionally impermissible under the Equal Protection Clause unless the legislative classification bears a rational relationship to a legitimate State purpose. Because same-sex marriages are singled out for differential treatment, DOMA appears to create a legislative classification for equal protection purposes that must meet a rational basis test. It is possible that DOMA would survive constitutional scrutiny under Romer inasmuch as the statute was enacted to protect the traditional institution of marriage. Moreover, DOMA does not prohibit States from recognizing same-sex marriage if they so choose.

Lawrence appears to stand for the proposition that the zone of privacy protected by the Due Process Clause of the Fourteen Amendment extends to adult, consensual sex between homosexuals. Lawrence's implication for statutes banning same-sex marriages and the constitutional validity of the DOMA are unclear.

Alison M. Smith Legislative Attorney American Law Division

Eileen McNamara Constitution Trumps All:[Third Edition].  Boston Globe.  Boston, Mass.:

Jul 9, 2006.  p. B.1

If we had just "let the people vote," black children would have been confined to segregated classrooms, wives would have remained the property of their husbands, and slaves the chattel of their masters.

Representative democracy is about more than accommodating popular opinion; it is about avoiding the tyranny of the majority.

That is worth remembering this week as both sides in the politically divisive issue of gay marriage use everyone from the owner of the New England Patriots to the cardinal-archbishop of Boston to argue for or against the right of same-sex couples to marry in Massachusetts.

In the end, what the state Constitution says matters more than what Bob Kraft or Sean O'Malley think.

That document, written by John Adams to include equal protection guarantees 88 years before the ratification of the 14th Amendment to the US Constitution, requires the recognition of same-sex marriages in the Commonwealth as a matter of equality under the law. As Chief Justice Margaret H. Marshall of the Supreme Judicial Court observed in the 2003 decision that legalized gay marriage, "The Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the federal Constitution; it may demand broader protection for fundamental rights; and is less tolerant of government intrusion into the protected spheres of private life."

That is why, in 1981, the SJC invalidated as unconstitutional a state law banning public funding of medically necessary abortions. To do so, the high court ruled, would treat poor women as a class separate and unequal to their more prosperous neighbors. That discrimination is illegal under the Massachusetts Constitution, the SJC ruled, even though the US Supreme Court had found no such protection for poor women in the federal Constitution.

The state Legislature will meet Wednesday to consider a proposed amendment to the Massachusetts Constitution to outlaw same-sex marriage. The measure needs the votes of at least 50 lawmakers this year and again next year to be included on the ballot in November 2008. Lawmakers should not be cowed by cries of "let the people vote." Fundamental civil rights are not a matter to be put to popular referendum.

It is not disrespectful to say to those with deeply held religious convictions against homosexuality that the law has a broader obligation. The question before the court in 2003, like the question before the Legislature meeting in Constitutional Convention on Wednesday, is about the civil, not the religious, definition of marriage. The issue is not who shall be blessed, but who shall be licensed.

As Justice John M. Greaney wrote in his concurring opinion in Goodridge v. The Department of Public Health, ". . . as a matter of constitutional law, neither the mantra of tradition, nor individual conviction, can justify the perpetuation of a hierarchy in which couples of the same-sex and their families are deemed less worthy of social and legal recognition than couples of the opposite sex and their families."

For two years now in Massachusetts, same-sex couples have been marrying, rearing children, and contributing to their communities without causing harm to those who find their unions morally objectionable. That some take offense at same-sex marriage is regrettable, not actionable. The social disintegration predicted by many when laws against interracial marriage began to collapse across this country did not materialize either. That does not mean everyone in America is yet comfortable with interracial marriage; it means the law affords them no remedy for their discomfort.

The four Roman Catholic bishops of Massachusetts claim that those who allow the Goodridge decision to stand suffer from "an exaggerated sense of entitlement." This is an odd perspective from religious leaders who aim to impose their doctrinal beliefs in a matter that is settled constitutional law in this Commonwealth.

Eileen McNamara is a Globe columnist. She can be reached at mcnamara@globe.com.

Marriage Protection Act Passes; House Bill Strips Federal Courts of Power Over Same-Sex Cases:[FINAL Edition]

Mary Fitzgerald and Alan Cooperman.  The Washington Post.  Washington, D.C.:Jul 23, 2004.  p. A04 Copyright The Washington Post Company Jul 23, 2004

The House approved a bill yesterday to strip the federal courts of jurisdiction over same-sex marriage cases, despite warnings by opponents that the measure is unconstitutional and would open the floodgates for efforts to prevent judges from ruling on other issues, from gun control to abortion.

With strong backing from the Bush administration, the Marriage Protection Act was adopted 233 to 194. However, the bill is likely to face strong opposition in the Senate, where some Republicans joined with Democrats last week to block a proposed constitutional amendment to ban same-sex marriage.

GOP sponsors described the bill as a fallback measure that would prevent federal courts from ordering states to recognize same-sex marriages that are permitted by other states. The bill, drafted by Rep. John N. Hostettler (R-Ind.), would prevent such a ruling by denying all federal courts, including the Supreme Court, jurisdiction to rule on the constitutionality of the Defense of Marriage Act, a 1996 federal law that says that no state has to recognize same-sex unions established in any other state.

Some social conservatives contend that it is only a matter of time before a federal court attempts to force the federal government or the other 49 states to recognize the same-sex marriages that Massachusetts began sanctioning in mid-May.

Republican House members argued on the floor that individual states should be allowed to defend their own marriage laws against unbridled judicial power.

"Lifetime-appointed federal judges must not be allowed to rewrite marriage policy for the states," Rep. Sue Myrick (R-N.C.) said.

"People who objected to the constitutional amendment said the definition of marriage is a matter that should be left up to the states. That's exactly what this bill does," said Hostettler's spokesman, Michael Jahr. "It means that Massachusetts can do what it wants, but what Massachusetts does cannot be imposed by a federal court on Texas or Indiana or California."

But the bill's congressional opponents, several constitutional scholars and a wide array of civil liberties groups called it a nearly unprecedented attack on the constitutional separation of powers among the judicial, legislative and executive branches of government.

"They couldn't amend the Constitution last week, so they're trying to desecrate and circumvent the Constitution this week," he added.

In a letter to lawmakers this week, Chai Feldblum, a professor at Georgetown University Law Center, said the last time that Congress passed a law stripping the Supreme Court of authority to hear a constitutional challenge was in 1868, when it feared that the court might invalidate the military Reconstruction of the South after the Civil War.

"When legislators rail that 'unelected judges' are finding legislative acts unconstitutional, they are attacking the very structure of our democracy," Feldblum wrote.

In recent decades, there have been calls for Congress to strip the courts of jurisdiction over numerous issues, including school desegregation, abortion and public displays of the Ten Commandments. But none has passed. Whether the Supreme Court would agree that Congress has power to wall off such areas is unclear, because the question has not been tested, scholars said.