On Thursday, July 22, members of the U.S. House of Representatives will vote on a new bill that would protect the 1996 Defense of Marriage Act from being struck down by federal courts. The legislation, also known as a “court-stripping” bill, passed the House Judiciary Committee on July14 – the same day the Federal Marriage Amendment stalled at the Senate.
The current Defense of Marriage Act (DOMA), which was signed into law by President Bill Clinton, defines marriage as a union of a man and a woman only, and gives states the option of not recognizing same-sex “marriage”. However, since the Supreme Court could easily strike down this law, pro-family and Christian groups have vigorously called for a constitutional amendment that courts would not be able to revoke.
The new legislation, entitled, The Marriage Protection Act, would be easier to pass than the Federal Marriage Amendment, since amending the constitution takes a two-third majority from both the House and Senate while passing a bill takes only a simple majority.
"This is a wonderful piece of legislation that can help Americans put on their critical thinking caps, take off their Dan Rather-blinders and look at what the Constitution actually says as distinguished from what people say about it," said Darrell White, co-director of the Louisiana Family Forum. “The federal courts exist -- with the exception of the Supreme Court -- at the pleasure of Congress,"
Should the bill pass, it would provide a barrier to the out-of-state same-sex couples that wish to get their Massachusetts-issued “marriage” licenses recognized in their own state.
Rep. John Hostettler, R-Ind., introduced the bill, saying it rests on a specific interpretation of Article III, Section 2 of the U.S. constitution: "[T]he Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." Section 1 states that Congress "ordain[s]" and "establish[es]" the lower courts.
According to Doug Kmiec, a constitutional law professor at Pepperdine University, the Constitution gives Congress the power to regulate the federal courts.
"It is clearly a constitutional exercise for Congress to assert its authority over the jurisdiction of both the lower federal courts [and the Supreme Court]," he told the Southern Baptist’s newsletter Baptist Press.
However, Kmiec added that the state courts could “adopt an unfavorable interpretation” of the DOMA, and those interpretations can be unreviewable.
"The idea of removing federal court jurisdiction -- even though it is textually provided in the Constitution -- is a largely unexercised power," Kmiec said. "When it has been sought to be exercised in the past, it has typically been quite controversial."
Richard Land, president of the Southern Baptist Ethics and Religious Liberty Commission, said he supports the Hostettler’s bill, but added that the FMA would be the only long term solution.
"We support any measure that will try to rein in the judiciary, but we support it, understanding that going after judicial tyranny with legislation is like hunting a hungry tiger with a BB gun," Land said. “An amendment is going after the tiger of judicial tyranny with an elephant rifle."
Meanwhile, ultra-liberal groups, such as the American Civil Liberties Union (ACLU) said the bill violates the Equal Protection Clause of the Constitution, and said the bill would “be found unconstitutional upon judicial review,” even if it should pass the House and Senate.
The Defense of Marriage Act was passed in 1996 by a vote of 342-67 in the House and 85-14 in the Senate. The Marriage Protection Act HR 3313 has yet to be introduced in the Senate.
