Marriage Protection Act Passes
House Bill Strips Federal Courts of Power Over Same-Sex Cases

By Mary Fitzgerald and Alan Cooperman
Washington Post Staff Writers
Friday, July 23, 2004; Page A04

The House approved a bill yesterday to strip the federal courts of jurisdiction over same-sex marriage cases, despite warnings by opponents that the measure is unconstitutional and would open the floodgates for efforts to prevent judges from ruling on other issues, from gun control to abortion.

With strong backing from the Bush administration, the Marriage Protection Act was adopted 233 to 194. However, the bill is likely to face strong opposition in the Senate, where some Republicans joined with Democrats last week to block a proposed constitutional amendment to ban same-sex marriage.

GOP sponsors described the bill as a fallback measure that would prevent federal courts from ordering states to recognize same-sex marriages that are permitted by other states. The bill, drafted by Rep. John N. Hostettler (R-Ind.), would prevent such a ruling by denying all federal courts, including the Supreme Court, jurisdiction to rule on the constitutionality of the Defense of Marriage Act, a 1996 federal law that says that no state has to recognize same-sex unions established in any other state.

Some social conservatives contend that it is only a matter of time before a federal court attempts to force the federal government or the other 49 states to recognize the same-sex marriages that Massachusetts began sanctioning in mid-May.

Republican House members argued on the floor that individual states should be allowed to defend their own marriage laws against unbridled judicial power.

"Lifetime-appointed federal judges must not be allowed to rewrite marriage policy for the states," Rep. Sue Myrick (R-N.C.) said.

Rep. F. James Sensenbrenner Jr. (R-Wis.) declared that marriage "is under attack," referring to the Massachusetts state court decision permitting same-sex marriage. Sensenbrenner said the legislation is needed to prevent Massachusetts law from being imposed throughout the country.

"People who objected to the constitutional amendment said the definition of marriage is a matter that should be left up to the states. That's exactly what this bill does," said Hostettler's spokesman, Michael Jahr. "It means that Massachusetts can do what it wants, but what Massachusetts does cannot be imposed by a federal court on Texas or Indiana or California."

But the bill's congressional opponents, several constitutional scholars and a wide array of civil liberties groups called it a nearly unprecedented attack on the constitutional separation of powers among the judicial, legislative and executive branches of government.

Democrats accused the bill's sponsors of using the issue as a smoke screen before the national conventions and the run-up to the November election. "This bill is a mean-spirited, unconstitutional, dangerous distraction," said Rep. Jim McGovern (D-Mass).

"Instead of addressing the real concerns faced by American families, the leadership of this house has decided to throw its political base some red meat.

"They couldn't amend the Constitution last week, so they're trying to desecrate and circumvent the Constitution this week," he added.

In a letter to lawmakers this week, Chai Feldblum, a professor at Georgetown University Law Center, said the last time that Congress passed a law stripping the Supreme Court of authority to hear a constitutional challenge was in 1868, when it feared that the court might invalidate the military Reconstruction of the South after the Civil War.

"When legislators rail that 'unelected judges' are finding legislative acts unconstitutional, they are attacking the very structure of our democracy," Feldblum wrote.

In recent decades, there have been calls for Congress to strip the courts of jurisdiction over numerous issues, including school desegregation, abortion and public displays of the Ten Commandments. But none has passed. Whether the Supreme Court would agree that Congress has power to wall off such areas is unclear, because the question has not been tested, scholars said.

Twenty-seven Democrats joined with 206 Republicans to pass the bill. Both Maryland Republican House members voted for the bill, and all the state's Democrats voted against it, while all Virginia Republicans and Democrat Rick Boucher voted for it, and the other Democrats voted no.

The American Civil Liberties Union noted that the vote fell well short of the two-thirds majority that would be required in the House to approve a constitutional amendment barring same-sex marriages. "It's time for the Republican leadership to stop messing around with the Constitution and get back to addressing the real problems that face real Americans," said Christopher Anders, ACLU legislative counsel.