In the wake of the Senate’s defeat of the Federal Marriage Amendment (FMA), Republicans in the House of Representatives have this week taken up a new measure to prevent the federal recognition of same-sex marriages.
On the same day the FMA died in a Senate procedural vote, the House Judiciary Committee passed, in a 21 to 13 vote, House Resolution 3313. Titled the Marriage Protection Act, this measure would remove the oversight power of federal courts, including the U.S. Supreme Court, from ruling on a specific portion of the 1996 Defense of Marriage Act (DOMA) that defines marriage as the union of one man and one woman.
Introduced by Representative John Hostettler, an Indiana Republican, H.R. 3313, a “jurisdiction stripping” bill, derives from an interpretation of Article III of the Constitution and wording that empowered Congress to create a federal court system and determine judicial jurisdiction, including that of the Supreme Court.
Rep. Jerrold Nadler of New York, a Democrat on the Judiciary Committee, considers the Marriage Protection Act to be unconstitutional.
“If this were 1790, it would probably be constitutional. But in 1791 the Bill of Rights was passed and the Fifth Amendment guarantees no one can be deprived of their rights without due recourse to the courts,” Nadler said. “If you are being denied some right, you have to have a forum to contest that. This bill denies certain people a forum for their grievances.”
DOMA was passed in 1996 and signed into law by Pres. Bill Clinton when it appeared Hawaii would legalize same-sex marriages. The law prevents the federal government from recognizing same-sex marriages, and also allows individual states to refuse to recognize same-sex marriages performed in other states.
Because DOMA negates the inter-state viability of same-sex marriages, as well as denying same-sex couples from participating in marriage laws, critics claim it violates the Constitution’s “full faith and credit clause,” which ensures that every state honors the public acts, records and judicial proceedings of other states, and the “equal protection clause” meant to ensure that there is no discrimination in the enforcement of laws.
Many opponents of same-sex marriage contend that a constitutional amendment will not gain sufficient political support to be ratified before the Supreme Court strikes down DOMA and paves the way for same-sex marriage in the U.S. The Marriage Protection Act is considered the only way to prevent what its proponents have referred to as the decisions of activist judges from imposing the legal recognition of same-sex marriages on every state.
“This legislation protects peoples’ rights to decide state marriage policy,” Rep. James Sensenbrenner, a Wisconsin Republican who is chairman of the Judiciary Committee, said last week when H.R. 3313 left his committee for a full House vote. “Far from violating the separation of powers as some have alleged, this legislation that leaves state courts with jurisdiction to decide certain classes of cases would be an exercise of one of the very checks and balances provided for in the Constitution.”
Yet, opinion differs as to whether the measure meets constitutional muster.
“This is simply an assault on the Constitution’s checks and balances and the guarantee of equal protection. It is a scheme to give Congress unchecked power over what is constitutional,” said Peter Montgomery of People for the American Way. “The federal courts explicitly protect Americans from Congress and legislative assaults on their fundamental rights.”
However, Jeff Deist, spokesperson for Rep. Ron Paul, a Texas Republican who favors H.R. 3313, while opposing a constitutional amendment banning gay marriage, said that the law was simply a reaffirmation of states’ rights, and not unconstitutional.
“The full faith and credit clause applies to judicial orders of the states, and there is a difference between a court order and a marriage license,” said Deist, who argued against the notion that the federal government had the authority or responsibility to be the constant adjudicator of what he termed societal injustices.
“There’s going to be a time for a while when older folks and Christian folks just don’t like the idea of gay marriage,” he said. “They have a right to express that in their state laws. A society as free as ours has a certain price and the federal government cannot correct what people believe.”
That argument does not satisfy Nadler.
“This is allowing state courts the ability to decide what is constitutional,” he argued. “If that’s done, we’ll have fifty different countries. This act also makes all rights theoretical. Now they can be granted and taken away by a simple majority vote in Congress, and there’s no way to enforce a person’s rights. If you can’t enforce a person’s rights, they are worthless.”
Nadler went on to say that the principles in the House marriage bill, if enacted, would allow the precedent for every new law passed by Congress to include language removing it from judicial review. Congress, said Nadler, would then become the final arbiters of what is and is not constitutional.
“Congress passes the laws, but it is the duty of the courts to interpret them,” he said.
Texas Rep. Tom DeLay, the Republican majority leader, told The Hill newspaper this week that he intends to use Congress’ power under Article III to limit the federal court system’s jurisdiction on other issues such as abortion rights and the Pledge of Allegiance.
DeLay has also said that the House will take up consideration of the Federal Marriage Amendment before the November elections.
The Marriage Protection Act will only become law if it also passes the Senate, but at the moment, there is no pending Senate version.
This week the House also considered and passed the District of Columbia appropriations bill. Rep. Jo Ann Davis, a Virginia Republican, had introduced an amendment attached to the city’s funding that would have prohibited the district from recognizing same-sex marriages.
According to Eleanor Holmes Norton, the district’s Democratic delegate, House Appropriations subcommittee chair Rodney Frelinghuysen, a New Jersey Republican and Rep. Tom Davis, a Virginia Republican who is the Government Reform Committee chairman, persuaded Jo Ann Davis to withdraw her amendment.
However, under the city’s home rule charter, Congress may enact or repeal any law in the district with a simple majority vote. Davis’ amendment could be re-introduced and approved by the House at any time. If then agreed upon by the Senate, a DOMA-like law could be imposed on the district.
Two weeks ago, Washington Mayor Anthony Williams reneged on a promise to offer the city’s view on whether or not municipal law allowed the recognition of same-sex marriage. Williams had promised such a decision before the July 4 recess of Congress. According to Tony Bullock, the mayor’s press secretary, fear of congressional interference, especially just as the city’s funding was being decided on, forced the mayor to withhold announcing a decision.