In a showdown on the role of Congress and the courts in defining marriage, the House voted yesterday to strip federal judges of the ability to rule on such cases, leaving the matter up to the states.
The Marriage Protection Act would prohibit the Supreme Court and other federal courts from deciding challenges to the 1996 Defense of Marriage Act, which says no state could be forced to accept a same-sex “marriage” entered into in another state.
If it passes the Senate and is signed into law, then couples who obtain licenses in Massachusetts, where the state Supreme Judicial Court legalized the practice, could not sue in federal courts for recognition from other states under the “full faith and credit” clause of the Constitution.
A lesbian couple this week filed the first such challenge in federal court in Florida.
“This bill is a check on judicial power, and the question is whether we should have the elected representatives of the people, in this case Congress today and the state legislatures in the future, determining marriage policy,” said Rep. F. James Sensenbrenner Jr., Wisconsin Republican and chairman of the House Judiciary Committee.
The bill passed 233-194, with 206 Republicans and 27 Democrats supporting it and 176 Democrats, 17 Republicans and one independent voting against it.
Opponents called the bill a “mean-spirited, unconstitutional, dangerous” election-year distraction.
“The Republicans have decided that if you are gay, you should be able to get along with just two branches of government,” said Rep. Edward J. Markey, Massachusetts Democrat.
Republican supporters viewed the fight over the definition of marriage as a fundamental challenge to civilization.
“Traditional marriage is the most stable, enduring, and efficient means of raising children, laying down the roots of community life, and establishing the necessary and sustainable predicates of nationhood,” said House Majority Leader Tom DeLay, Texas Republican. “This is the evolution of civilization.”
But Democratic opponents, particularly those from Massachusetts, said that state’s experience proves civilization is not in danger.
“The sight of two lesbians falling in love and wanting to formalize that has so traumatized the majority that they are prepared to make the biggest hole in the Constitution that we have seen,” said Rep. Barney Frank, Massachusetts Democrat.
Though the definition of marriage was the basis for yesterday’s fight, in the end it was more a battle over constitutional power and the fundamental division of government.
“Thomas Jefferson wrote that leaving federal courts as the ultimate arbiter of all constitutional questions is, ’a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy,’ ” Mr. Sensenbrenner said. “This legislation heeds Jefferson’s wise words.”
Opponents instead pointed to the 1803 Supreme Court decision Marbury v. Madison, in which the court established itself as the arbiter of constitutionality.
That case, said House Minority Leader Nancy Pelosi, California Democrat, “stated that it is emphatically the ’province and the duty’ of the judicial department to say what the law is. Subsequent decisions and the court’s role as an equal branch strongly suggest that Congress cannot prohibit the court from determining the validity of a law in the first place.”
But John Hostettler, Indiana Republican and the bill’s sponsor, said Article III of the Constitution, which establishes the Supreme Court, gives Congress the power to create other federal courts, to limit those inferior courts’ jurisdiction completely, and to curb the Supreme Court’s jurisdiction in all but a few cases.
“Anyone that actually reads the Constitution and has a basic understanding of grammar and the English language in general can find the fact that the Constitution grants the Congress the authority,” he said.
Even some of his opponents agreed.
“This Congress can strip the Supreme Court of much of its jurisdiction, can abolish all appellate courts and can abolish all district courts,” said Rep. David Wu, Oregon Democrat. “But just because we can do something, doesn’t mean we should do something.”
Under yesterday’s bill, state legislatures or state courts would still be free to allow same-sex “marriages” in their own states and to recognize those from other states, if they so choose.
An official at the American Civil Liberties Union, which rallied opposition to the bill, said although he was disappointed in the outcome, it showed there probably are not enough votes for a constitutional amendment to define marriage as a union of a man and a women.
“Tom DeLay set this bill up as a ’test vote’ for a constitutional amendment. The vote today makes clear that the amendment will overwhelmingly fail the test. Supporters of a Federal Marriage Amendment are short by at least 57 votes of the 290 that they need to pass an amendment,” said ACLU lawyer Christopher E. Anders.
The Senate last week failed to pass a constitutional amendment when backers couldn’t overcome a filibuster by most Democrats and some Republicans. Though the Senate never voted on the amendment itself, the filibuster vote was 19 votes shy of the 67 needed to pass an amendment.
The Bush administration supports yesterday’s House bill, as well as passage of an amendment. Conservative advocacy groups such as the Family Research Council, also embraced the bill, though they said it is not a substitute for an amendment.
Also yesterday, Rep. Ernest Istook Oklahoma Republican, introduced a bill, the proposed National Marriage Law, that would define marriage throughout the country as the union of a man and a woman. It would explicitly overturn what Massachusetts’ Supreme Judicial Court has done.
“I support the Federal Marriage Amendment, but amending the Constitution is a difficult, lengthy process,” Mr. Istook said. “This is a backup plan. We need to act now to protect this all-important building block of our society, until we can get the stronger protection of a constitutional amendment.”
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