Bad Idea

The House Republicans have passed legislation restricting the federal courts from ruling on state bans on gay marriage by stripping their jurisdiction. Contrary to those quoted in the article, this is probably constitutional due to the provision in Article III, Section 2:

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.

That doesn't make this a good idea, however. I will have more to say on this, when I get a free moment but Eugene Volokh already made some excellent points back in February:

But just how useful would that be? Even if federal courts lose jurisdiction over objections to some statute, state courts would still be able to entertain them -- state courts must enforce the U.S. Constitution just as much as federal courts do (that's in art. VI, sec. 2). If people are worried that the U.S. Supreme Court may strike down the Defense of Marriage Act, then they should be worried that state supreme courts may do the same; and even those state supreme courts that might n t take this view on their own might feel moved by precedents from other states, since courts throughout the country tend to try to interpret the U.S. Constitution consistently with the decisions of other courts.

What's more, if a state supreme court does hold DOMA unconstitutional under the U.S. Constitution, then there'll be no remedy (short of impeaching the state supreme court Justices). Amending the state constitution, which is a remedy for state supreme court decisions based on the state constitution (such as the Goodridge gay marriage decision in the Massachusetts) will do nothing to change the state court's interpretation of the U.S. constitution. And an appeal to the U.S. Supreme Court won't be possible, because the Court has been stripped of jurisdiction to hear the case. (I suppose one could strip the Court of jurisdiction to hear appeals from decisions upholding DOMA but not from decisions invalidating DOMA, but then if the Court upholds a decision invalidating DOMA, DOMA will be invalid throughout the country.)

UPDATEA: Eugene Volokh has reposted his original remarks with some further comments here. An interesting fact about his second point

Such a jurisdiction-stripping statute would nonetheless probably be constitutional, because of article III, section 2, clause 2 of the Constitution

is that he emphasizes the word "probably". As I noted above, a plain reading of the text makes it perfectly obvious that Congress does have the Constitutional authority to do this, but Volokh is rightly cautious. The original intent of the Constitution was to make the laws clear to every citizen, but the days when we could rely on judges and lawyers to see the obvious are long gone.

UPDATE: And -- just when you thought the waters were muddy enough -- French judges have just anulled the first Gay marriage:

Members of the ruling conservative party, Roman Catholic church leaders and some opposition Socialists have opposed gay marriage on the grounds that children need a mother and a father. The couple's lawyer, Emmanuel Pierrat, said the court had based its ruling on the argument that marriage is traditionally considered the foundation of the family and that one of its main functions is to have children.

I wonder if this will make the Democrats stop drinking Bordeaux.

On a more realistic note, I don't think this argument will survive long. As the article continues:

Mr Pierrat said the judgment was based on an extremely traditional concept of the family, given that over half of French children are born outside of marriage.

However praiseworthy this decision may be, the very fact that that it comes as such a surprise suggests that it will be overturned on appeal. And in this country, it will take a huge effort to bring the culture back around to the point where marriage, sex and children form a natural progression rather than a collection of unrelated options. The courts are not the best battlefield for the traditional position, and will not be until there is a popular consensus on the subject.