Thursday, July 22, 2004

The House will have a showdown today on an issue at the heart of American governmental power when members vote on a bill that would leave the issue of same-sex “marriage” to the states by stripping federal courts of power to make one state recognize another state’s rules.

“This is a concept that goes to all different issues, and indeed to the balance of power between the branches of government,” said Rep. Rob Bishop, Utah Republican, adding that it’s about time that Congress asserted its authority to check the courts.

“I think it provides a greater prospect for future balance for future issues than anything else we can possibly do at this particular time. This is a great step forward for Congress in reasserting its constitutional authority,” he said.

He and the bill’s other supporters say the balance of power between the three branches of government is out of kilter, with federal courts having taken so much authority to rule in areas that the Founding Fathers never intended.

“Who is it who should stand against activist judges? The Constitution says it is the two other branches of government — the executive branch and the legislative branch,” said Rep. Todd Akin, Missouri Republican.

But opponents said the law upsets 200 years of precedent on the relationship between the courts and the legislature.

“It’s the courts that actually enforce the laws we pass. They are an equal branch of government. We all have roles to play,” said Rep. Charlie Gonzalez, Texas Democrat.

The Marriage Protection Act, sponsored by Rep. John Hostettler, Indiana Republican, says federal courts cannot rule on the constitutionality of the 1996 Defense of Marriage Act (DOMA), the law that says no state can be forced to recognize a same-sex “marriage” from another state.

Mr. Hostettler fears that federal courts would rule the act a violation of the “full faith and credit” clause of the Constitution, which says a contract in one state is recognized in another state. He thinks that if DOMA were invalidated, other states could be forced to recognize a same-sex “marriage” from Massachusetts.

Currently, 44 states define marriage as the union of a man and a woman.

Mr. Hostettler said Congress has the power to strip federal court authority under Article III of the Constitution, which establishes the Supreme Court but gives Congress the power to establish inferior federal courts and to set jurisdiction in most cases for the entire federal judiciary.

But opponents said court stripping is a dangerous precedent and compared the showdown of today to battles over segregation in the middle of the past century.

“It’s like members of Congress using this to stand in the courthouse door, the same way George Wallace stood in a schoolhouse door,” said Rep. John Lewis, Georgia Democrat.

Mr. Hostettler said there are many examples of Congress restricting courts’ ability to hear cases.

But “what’s unconstitutional about the Marriage Protection Act, for equal protection purposes, is that you’re excluding an entire group of people from ever getting in the courthouse door,” said Christopher E. Anders, a lawyer for the American Civil Liberties Union, which is rallying opposition to the bill.

Mr. Anders said he expects a close vote, partly because the bill has split conservatives.

The Family Research Council rejected the bill as a poor substitute for a constitutional amendment, arguing that an amendment is the only solution that goes far enough. Meanwhile, other conservatives will oppose it because they are wary of court stripping, particularly when no federal court has ruled against DOMA.

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