Republicans, including President George W. Bush, may have some explaining to do if the U.S. Supreme Court strikes down the Defense of Marriage Act.

Suppose a lot of people were counting on you to accomplish something and there were two ways—one hard and one easy—to do it.  Which would you choose?  If you picked the hard way, and then failed, how would you explain that to the people counting on you?

“Gay-marriage” cases are now wending their way up to the Supreme Court.  There are two ways to stop them.  The hard way is by constitutional amendment, which requires a two-thirds vote of both the Senate and the House.  On July 18, the Marriage Protection Amendment failed in the House 236-187, 47 votes short.  The amendment, even had it passed the House, was going nowhere since it had already failed in the Senate, garnering only 49 votes—out of a needed 67—on a procedural vote in May.  So, in this case, the Amendment Route is worse than hard: It’s impossible.

In contrast, the House demonstrated the easy way when, the very day after the Marriage Protection Amendment failed, it passed a statute removing cases involving the Pledge of Allegiance from the U.S. Supreme Court’s docket by a 260-167 vote.  The easy way is the Statutory Route—a simple statute limiting what cases the Supreme Court can hear.  The House, in 2004, passed H.R. 3313 by a vote of 233-192, which used the Statutory Route to remove “gay marriage” cases from the Court’s docket.  H.R. 3313 ultimately failed, however, because the Bush administration made no effort to get the bill through the Senate.  The 2004 Republican platform, however, promised to try again if the President was reelected.  Why doesn’t he reintroduce H.R. 3313, pass it in the House again, and try to get it through the Senate?  One third of the Senate is up for reelection in November, so why not try?

For many years, Republicans said the Democrats did not want to solve the welfare problem because it was such a good campaign issue for them.  Well, if we solved the homosexual-marriage and activist-judge problems, the Republicans would lose their two premier campaign issues—issues that may have won the 2004 election for them.

But there is no doubt that the problem can easily be solved by the Statutory Route.  Most Americans view the Court as the ultimate arbiter of constitutional questions, but the Constitution does not assign that role to the Supreme Court.  As Chief Justice John Roberts said at his nomination hearings, “The people who framed our Constitution were jealous of their freedom and liberty.  They would not have sat around and said ‘Let’s take all the hard issues and give them over to the judges.’  That would have been the furthest thing from their minds.”  The Court’s authority to interpret the Constitution derives from its obligation to decide cases.  The Chief Justice testified: “The obligation to decide cases is the only basis for the authority to interpret the Constitution.”  He wrote, while working for the Department of Justice in 1982, that, “If the necessity of interpreting the Constitution is removed, as it would be if the Court were divested of jurisdiction, the basis for the Court’s role as final interpreter of the Constitution is removed.”  Congress, under Article III of the Constitution, is in charge of deciding what cases the Court may hear.

The necessity for a bill such as H.R. 3313 depends on how you think the Supreme Court will rule on the validity of the 1996 Defense of Marriage Act.  If the Court upholds it, the states will retain control over the definition of a marriage.  But if the Court strikes it down, the states will be overruled, and a Massachusetts “gay marriage” will have to be recognized by Ohio.  No one, of course, knows which way the Court will rule.  But many believe that—in view of its decision in Lawrence v. Texas, which found a constitutional right to sodomize—the Court will rule, under the Constitution’s Full Faith and Credit Clause, that Ohio must recognize a Massachusetts gay marriage.

The House votes on July 18 and 19 were part of the Republican Values Agenda, which is intended to show the party’s concern for traditional values.  In fact, the votes demonstrated a deep cynicism.  The failure of the Amendment Route, followed by the success of the Statutory Route the very next day, shows that any serious person would use the latter.  The Republican Party is free to prefer a campaign issue to a viable solution, but they have to hope that their constituents are too blind to see what they are doing.  If they do open their eyes, they will be very angry.