Tuesday, November 09, 2004

House set to vote Thursday on bill limiting court review of Defense of Marriage Act
July 20, 2004
By Michael Foust

WASHINGTON (BP)--The U.S. House of Representatives is scheduled to vote Thursday on a bill that would prevent federal courts, including the Supreme Court, from reviewing the federal Defense of Marriage Act -- the law that gives states the option of not recognizing same-sex "marriage."

Pro-family groups are supporting the legislation -- called the Marriage Protection Act -- as a short-term solution in the battle to defend traditional marriage. But liberal activist groups such as the American Civil Liberties Union say the bill is unconstitutional and likely will challenge it in court if it becomes law.

The bill, sometimes referred to as a "court-stripping" bill, passed the House Judiciary Committee July 14 by a vote of 21-13 -- the same day that the Federal Marriage Amendment lost in the Senate on a procedural vote. Thus, the bill could provide marriage amendment supporters a victory one week after a Senate defeat.

"The federal courts exist -- with the exception of the Supreme Court -- at the pleasure of Congress," Darrell White, a retired judge who serves as co-director of the Louisiana Family Forum, told Baptist Press.

The Marriage Protection Act, sponsored by Rep. John Hostettler, R.-Ind., seeks to take advantage of a section of the U.S. Constitution rarely used. His bill rests on a specific interpretation of Article III, Section 2 of the U.S. Constitution, which states in part: "[T]he Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." Section 1 states that Congress "ordain[s]" and "establish[es]" the lower courts.

"This is a wonderful piece of legislation that can help Americans put on their critical thinking caps, take off their Dan Rather-blinders and look at what the Constitution actually says as distinguished from what people say about it," White, who served 20 years on the Baton Rouge (La.) City Court, said.

The bill seeks to protect the Defense of Marriage Act, which was signed into law in 1996 and gives states the option of not recognizing another state's same-sex "marriages" and also prevents the federal government from recognizing homosexual "marriage." The law has provided a barrier to same-sex couples who want other states to recognize their Massachusetts marriage licenses.

Doug Kmiec, a constitutional law professor at Pepperdine University, said the Constitution gives Congress the power to regulate the federal courts.

"It is clearly a constitutional exercise for Congress to assert its authority over the jurisdiction of both the lower federal courts [and the Supreme Court]," he told BP.

But Kmiec said the bill could have a downside. If it becomes law, Kmiec said, state courts could "adopt an unfavorable interpretation" of the federal Defense of Marriage Act -- rulings he said would be unreviewable because of the law.

"The idea of removing federal court jurisdiction -- even though it is textually provided in the Constitution -- is a largely unexercised power," Kmiec said. "When it has been sought to be exercised in the past, it has typically been quite controversial."

Although rare, Congress has passed similar bills before. Shortly after the Civil War, Congress passed a bill that prevented the Supreme Court from ruling on a Reconstruction-related law. It is known as the Ex parte McCardle case.

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, recently said he supports Hostettler's bill, although he believes a Federal Marriage Amendment to the Constitution is the only long-term solution. The bill is supported by other pro-family groups, including Family Research Council and Concerned Women for America.

"We support any measure that will try to rein in the judiciary, but we support it, understanding that going after judicial tyranny with legislation is like hunting a hungry tiger with a BB gun," Land said. “An amendment is going after the tiger of judicial tyranny with an elephant rifle."

The ACLU argues that the bill violates the Equal Protection Clause by preventing homosexuals from challenging the Defense of Marriage Act in court. The bill, if it becomes law, "will be found unconstitutional upon judicial review," the ACLU said in a statement.

The bill could put some politicians in a bind. During the marriage amendment debate, several senators criticized the amendment, saying it was unnecessary because the Defense of Marriage Act had yet to be successfully challenged. Some, in fact, even predicted that it would be upheld in court. Most amendment opponents also argued that the issue of marriage should be left to the states.

"DOMA was passed with three-quarters ... support of the House and the Senate and was signed into law by a Democrat President," House Majority Leader Tom DeLay, R.-Texas, said July 14. "If that is not consensus, nothing is. Democrats who are afraid of a controversial issue -- two senators in particular come to mind -- say that they want the states to define marriage on their own. That's what DOMA does. This bill is what the Democrats say they want."

The Defense of Marriage Act was passed in 1996 by a vote of 342-67 in the House and 85-14 in the Senate.

The Marriage Protection Act is HR 3313. It has yet to be introduced in the Senate.

The House also is considering a separate "court-stripping" bill, HR 2028, that would remove federal court review in Pledge of Allegiance cases. Sponsored by Rep. Todd Akin, R.-Mo., it has 225 sponsors -- a majority of the House.

For more information about the national debate over same-sex "marriage," visit