From The Washington Blade

House passes Marriage Protection Act
Bill would bar federal courts from ruling on constitutionality of DOMA

by Lou Chibbaro Jr.

July 23, 2004

One week after the Senate defeated a proposed constitutional amendment to ban same-sex marriage, the House of Representatives voted 233 to 194 on July 22 to pass a bill that would bar federal courts - including the U.S. Supreme Court - from deciding whether the Defense of Marriage Act is constitutional.

Gay civil rights attorneys said the bill, H.R. 3313, the Marriage Protection Act, appeared unconstitutional and would set a dangerous precedent by altering the balance between the legislative and judicial branches of government.

"The legislation seeks to forever slam shut the federal courthouse doors to gay and lesbian couples challenging an anti-gay federal marriage law," the American Civil Liberties Union said in a statement.

"Last week, the Senate rejected amending the Constitution, but today the House voted to violate it," said ACLU legislative counsel Christopher Anders.

In the vote on the Marriage Protection Act, 206 Republicans and 27 Democrats voted for the bill while 176 Democrats, 17 Republicans and one independent voted against it.

While disappointed in the outcome, gay activists were quick to point out that the 233 vote total in favor of the bill fell significantly short of the 290 votes needed by the House to pass the proposed constitutional amendment banning gay marriage.

"On the positive side, 194 members of Congress rejected this mean-spirited, divisive, disgusting and clearly unlawful bill," said Matt Foreman, executive director of the National Gay & Lesbian Task Force.

The House approval of the bill appears to confirm the view of its sponsors that, while many lawmakers are unwilling to back a constitutional amendment to ban gay marriage, they have no qualms about supporting a bill that bans federal courts from forcing individual states to recognize gay marriages.

Gay civil rights leaders were expected to turn their attention to the Senate, with the hope of persuading a majority of senators to defeat the bill. President Bush was expected to sign the legislation if the Senate joins the House in passing it.

Wisconsin Congressman James Sensenbrenner, the Republican chair of the House Judiciary Committee, said the bill was needed to ensure that federal courts don't force states to recognize same-sex marriages performed in other states. The measure was approved by the committee on July 14.

"Integral to the American constitutional system is each branch of government's responsibility to use its powers to prevent overreaching by the other branch," Sensenbrenner said.

But gay rights attorney Paul Smith, who successfully argued the Lawrence vs. Texas Supreme Court case, which overturned state sodomy laws, said the scope of the proposed law was unprecedented because it targets gay citizens as a single minority group.

"If you deny the Supreme Court the power to decide minority rights, you dramatically alter the balance of power between the court, which exists to protect constitutional rights, and the Congress, which addresses political issues," Smith said.

The House approval of the legislation came on the same day that an independent federal commission studying the Sept. 11, 2001 terrorist attacks released its final report, which criticized Congress and the Bush and Clinton administrations for not doing enough to prevent terrorist strikes on the United States.

"Congress today was sent an historic message to focus on terrorism and it focused on discrimination instead," said Cheryl Jacques, president of the Human Rights Campaign, the nation's largest gay political group.

"We will work to ensure that this measure is soundly rejected in the Senate," Jacques said.

Among those speaking out against the bill, during a two-hour debate on the House floor, were gay Reps. Barney Frank (D-Mass.) and Tammy Baldwin (D-Wis.).

"It is a terrible mistake to strip one branch of government of the power to review laws," Baldwin said.

Gay Rep. Jim Kolbe (R-Ariz.), the only gay Republican member of Congress, voted against the bill, although he did not make remarks on the legislation on the House floor.

No D.C. DOMA
The House vote on the Marriage Protection Act took place two days after the House passed D.C.'s fiscal year 2005 appropriations bill without adding an amendment banning the District from legalizing same-sex marriage.

On July 7, Rep. Jo Ann Davis (R-Va.) introduced a bill that would prohibit D.C. from legalizing same-sex marriage or recognizing same-sex marriages from other states. Capitol Hill observers expected Davis and House GOP leaders to attempt to attach the Davis bill to the D.C. appropriations bill this week.

To the surprise of gay activists, House Majority Leader Tom DeLay (R-Texas), a strong opponent of gay rights, persuaded Davis and other House Republicans not to attach Davis' bill to the D.C. appropriations measure. According to the Washington Post, DeLay said conservative and religious leaders opposing same-sex marriage would not favor limiting a ban on such marriages to D.C.

Instead, DeLay reportedly told gay marriage opponents that they should devote their attention to passing the Marriage Protection Act as well as the Federal Marriage Amendment, the proposed constitutional ban on gay marriage that the Senate voted down last week. DeLay said he would bring the FMA to the House floor for a vote in September, the Post reported.

DeLay's office did not return a call by press time.

Federal DOMA unconstitutional?
The Defense of Marriage Act, known as DOMA, defines marriage under federal law as a union between a man and a woman and allows states to refuse to recognize same-sex marriages performed in other states.

During the Senate debate last week over the FMA, supporters argued that a constitutional ban on same-sex marriage was needed because federal courts and the U.S. Supreme Court would likely strike down DOMA.

FMA supporters, including Senator Wayne Allard (R-Colo.), the FMA's chief sponsor, said the Supreme Court would likely rule that DOMA violates the Constitution's full faith and credit clause, which requires states to honor contracts and other legal agreements issued in other states.

Many of the senators who opposed the FMA disputed Allard's argument, saying a constitutional ban on gay marriage wasn't needed because DOMA would most likely withstand a constitutional challenge.

This week, gay activists expressed concern that members of the House and Senate who used this argument to justify their opposition to the FMA would feel constrained to vote for the Marriage Protection Act.

"The many senators who justified their vote because the nation already has a DOMA will have a hard time objecting to this legislation," said Matt Foreman, executive director of the National Gay & Lesbian Task Force.

Rep. John Hostetler (R-Ind.) introduced the Marriage Protection Act last year with little public notice or debate.

The bill states, "No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or determine any question pertaining to the interpretation of [DOMA]."

"This legislation protects the people's right to decide state marriage policy under DOMA, which Congress passed overwhelmingly and President Clinton signed into law," said Sensenbrenner, at the time the House Judiciary panel passed the bill on July 14.

Supporters of the measure cite Article III of the Constitution, which states, "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." They interpret this clause to give Congress some authority to limit the jurisdiction of federal courts.

Unlike the FMA, the Marriage Protection Act would not bar states from legalizing same-sex marriage through the passage of legislation by their legislatures or through decisions by state courts.

But gay rights attorneys said the bill nevertheless would set a strong and harmful precedent by taking away the power of federal courts to decide one specific issue that pertains to gay civil rights - the question of whether gay Americans should be allowed to marry.

"I'm worried about it," said gay U.S. Rep. Barney Frank (D-Mass.), before the July 22 vote. "The Democratic leadership is fighting it," Frank said. "It's come up so quickly. We don't know what will happen."

Chai Feldblum, a gay civil rights attorney and Georgetown University law professor, conducted a briefing on the bill on July 20 for more than 100 staffers to Democratic members of the House. Smith, the gay rights attorney who argued the Lawrence vs. Texas case, joined Feldblum in conducting the briefing.

"We told the staffers how critical this is," Feldblum said. "We said this would be a truly radical move by Congress that would challenge the separation of powers in the federal government."

Separation of powers
Feldblum said she believes the bill violates at least three sections of the Constitution: the "equal protection" clause, the "due process" clause and the "separation of powers" clause.

According to Feldblum, federal courts and the U.S. Supreme Court would likely declare the Marriage Protection Act invalid. But she said lawmakers concerned about protecting the rights of gays and other minorities should not automatically assume the courts would overturn the bill if Congress enacts it.

"I stressed that it would be a big mistake to not oppose it and to wait for the courts to strike it down," Feldblum said.

Feldblum added that opponents of same-sex marriage have misinterpreted the intent of the nation's Founding Fathers by arguing that un-elected judges have overstepped their bounds in rulings in Vermont and Massachusetts, which overturned state laws banning same-sex marriage.

"The whole point of the separation of powers is to have one out of three branches of the government that is not subjected to elections," she said. "These un-elected judges are doing what they are supposed to do."

Sensenbrenner disputed that assessment.

"The Constitution allows the exercise of 'judicial power,' but it does not grant the federal courts unchecked power to define the limits of its own power," he said. "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 the very 'checks and balances' provided for in the Constitution."

Gay rights attorneys such as Feldblum and Smith argue that the Marriage Protection Act would likely startle and offend the likes of Alexander Hamilton, James Madison and John Jay, who are credited with writing the Federalist Papers to justify ratification of the U.S. Constitution in 1787.

The three stated that an un-elected judicial branch of government was essential to protect the rights of minorities from the majority, or the "masses," especially in instances when public emotions are inflamed over issues that, over time, may be viewed as less important than at a given moment.

MORE INFO
How they voted

Democrats voting in favor of Marriage Protection Act
Rodney Alexander, La.
Marion Berry, Ark.
Rick Boucher, Va.
F. Allen Boyd, Fla.
Brad Carson, Okla.
Ben Chandler, Ky.
Jerry Costello, Ill.
Bud Cramer, Ala.
Lincoln Davis, Tenn.
Chet Edwards, Texas
Bart Gordon, Tenn.
Stephanie Herseth, S.D.
Tim Holden, Pa.
Christopher John, La.
Ken Lucas, Ky.
Jim Marshall, Ga.
Jim Matheson, Utah
Mike McIntyre, N.C.
Collin Peterson, Minn.
Nick Rahall, W.Va.
Mike Ross, Ark.
Max Sandlin, Texas
Ike Skelton, Mo.
Charlie Stenholm, Texas
John Tanner, Tenn.
Gene Taylor, Miss.
Jim Turner, Texas

Republicans voting against the Marriage Protection Act
Charles Bass, N.H.
Doug Bereuter, Neb.
Judy Biggert, Ill.
Mary Bono, Calif.
Michael Castle, Del.
Phil English, Pa.
Mark Foley, Fla.
Jim Gerlach, Pa.
Wayne Gilchrest, Md.
Amo Houghton, N.Y.
Johnson, Conn.
Jim Kolbe, Ariz.
Jim Leach, Iowa
Doug Ose, Calif.
Ileana Ros-Lehtinen, Fla.
Christopher Shays, Conn.
Rob Simmons, Conn.

Not voting
Julia Carson, Ind.
Mac Collins, Ga.
James Greenwood, Pa.
Mark Kirk, Ill.
Dennis Kucinich, Ohio
Nita Lowery, N.Y.
Ron Paul, Tex.
Jack Quinn, N.Y.