WASHINGTON (ABP) — Barely a week after their Senate counterparts voted down a proposal to ban same-sex marriages, House members passed legislation using different methods to achieve a similar goal.
On July 22, the House voted 233-194 to pass the Marriage Protection Act of 2004. If passed by the Senate and signed into law, the bill would prevent federal courts — including the Supreme Court — from deciding on the legality or constitutionality of cases involving part of the Defense of Marriage Act (DOMA).
That 1996 law — passed by a wide margin in Congress and signed into law by then-President Bill Clinton — defines marriage under federal law as between a man and a woman. DOMA also says that states cannot be forced to recognize same-sex marriages performed by other states.
The Marriage Protection Act, which has yet to be introduced in the Senate, would limit the courts' jurisdiction over claims against one part of DOMA — the provision that prevents states from being forced to accept other states' homosexual marriages. Opponents of same-sex marriage fear that the Constitution's “full faith and credit” clause — which requires states to recognize legal contracts of other states — could be used to force gay marriage on states that have banned it.
However, the Marriage Protection Act would not prevent courts from ruling on cases involving the other part of DOMA. That part defines marriage only in heterosexual terms for federal services, thus limiting the federal benefits of marriage to heterosexual couples.
The recent legalization of same-sex marriage in Massachusetts, coupled with Supreme Court rulings on gay rights, has caused many lawmakers to seek ways to limit what they consider a runaway federal judiciary in the area of marriage law. The bill's proponents feared a federal court could strike down DOMA unless prevented by law.
The Senate voted July 14 to block a proposed constitutional amendment that would have banned same-sex marriage in all 50 states. The House plans to vote on a similar measure between now and the November elections.
After the failure of that proposal, Republican leaders in both chambers of Congress said they were seeking other ways to keep legalized gay marriage from spreading beyond Massachusetts. As evidence of the urgency of their cause, they pointed to a lawsuit filed July 20. In it, a Florida lesbian couple married in Massachusetts is seeking to overturn DOMA and force Florida to recognize the marriage.
Many mainstream legal experts dispute that the federal courts would overturn DOMA based on a challenge to the full-faith-and-credit clause, but they say it could be overturned on other grounds.
Proponents of the Marriage Protection Act said there is an urgent need to limit challenges to DOMA on the faith-and-credit grounds.
“We can do this. The question remaining before us is this: Should Congress do this?” said Rep. John Hostettler (R-Ind.), the Marriage Protection Act's chief sponsor, in floor debate on the bill July 22. “That question was answered Tuesday [when the Florida lawsuit was filed].”
But bill opponents — including House Democrats and a handful of Republicans — argued that the bill is constitutionally suspect and dangerous because it would prevent one group of Americans from asserting claims for their rights in federal courts.
“I know what it means to be excluded from your own Constitution,” said Rep. Eleanor Holmes Norton (D-D.C.), Washington's non-voting delegate to Congress. “I never thought I would see a civil war in law in which we exclude” one group of Americans from the ability to assert their rights.
The bill's opponents derided the “court-stripping” attempt by saying that it would set a dangerous precedent. Norton and other House members noted that previously unpopular federal court decisions — such as the 1954 Brown vs. Board of Education decision outlawing racial segregation in public schools — inspired similar court-stripping attempts. However, none became law.
“Any time there is a decision like this [in Massachusetts] that raises the hackles of the country, people rush forward with attempts to strip the courts,” Norton said.
But supporters argued that the Constitution allows Congress to limit the jurisdiction of the federal courts in many areas, including marriage law. They also said the bill would not prevent state courts from hearing lawsuits on the unconstitutionality of DOMA.
“This bill uses constitutional provisions to allow the states — the citizens of the states — to determine the definition of marriage,” Hostettler said.
Opponents also criticized the bill for opening the door to other laws removing any emotional issue from review by federal courts. Several proposals have been filed in both chambers of Congress this session that would strip the federal courts of their ability to decide cases dealing with controversial issues such as the words “under God” in the Pledge of Allegiance, or religious references on government property.
The Marriage Protection Act is House Resolution 3313.
-30-