July 24, 2004
House Approves Marriage Protection Act
After a very heated debate, the House of
Representatives overwhelming voted on
Thursday to strip all federal courts - including the Supreme Court - of
their power to make one state recognize another state's same-sex marriage.
It is the most important victory of the marriage
movement, and came only a week after the Senate voted 50-48 to defeat
consideration of a Federal Marriage Amendment that needed 60 votes to close
debate and 67 to pass it.
The House vote was 231 to 194, with 25 Democrats
joining 204 Republicans to pass the bill while 15 Republicans voted with 176
Democrats in opposition. Conservatives only needed a majority vote on this
measure, with a similar vote in the Senate.
There passion on each side was partisan. "This is an
extraordinary piece of arrogance to strip the right of Americans to go into
court to have their concerns addressed," said John Dingell, D-MI. "Shame! Shame! Shame! It is a precedent we which we will live to
Rep. Jim Sensenbrenner, R-WI, replied, "The framers of
our government provided in
Article 3, Section 2 of the Constitution, a check by the legislative branch
on the judicial branch.... The judicial power is not unlimited." That section states the Supreme Court "shall have appellate
Jurisdiction...with such Exceptions and under such Regulations as the
Congress shall make."
Republicans and Democrats argued over whether the
provision had ever been used. Rep. Zoe Lofgren, D-CA, said "You have to go back to 1803 in the case of
Madison" to see that the Supreme Court has the right to overrule Congress.
Sensenbrenner cited 11 recent cases, such as the Patriot Act, in which
Congress said the provisions could not be reviewed by the federal courts.
Rep. John Lewis, D-GA, who was beaten up during Civil
Rights marches, was angry: "For me this is unreal. It is unbelievable. Those
of us who came through the Civil Rights Movement found federal courts
sympathetic to our pleas for justice. If I had not been able to go to
federal courts, we would be legally segregated in America. I would not be
standing here today."
Rep. Spencer Bachus, R-AL, argued "This decision
defines us as Americans. It is about who we are. It is about who
should make the decision about what marriage is." Should it be the courts,
who voted 4-3 in the Massachusetts Supreme Judicial Court that gay marriage
"Or should the people make the law through their elected
representatives? This court decision could lead to a man marrying three
women, or a man who chooses to marry his daughter."
Normally, one state will recognize another state's
granting of a marriage or driver's
licence as required by the "full faith and credit" provisions of the
Constitution. The Hostetler bill would forbid any federal court challenge of
the Defense of Marriage Act (DOMA), .
DOMA, passed overwhelmingly by Congress in 1996 and
signed by President Clinton,
stated that marriage is defined as one man marrying one woman. Social
Security benefits, for example, could not be paid to a lesbian survivor of a
lesbian couple who had a marriage license. DOMA also stated that
no state has to recognize a same sex marriage of another state, despite the
"full faith and credit" clause.
However, a Florida lesbian couple who was "married" in
Massachusetts recently filed a
lawsuit challenging DOMA, demanding that Florida recognize their marriage.
They are likely to cite last year's landmark Supreme Court case, Lawrence v.
Texas, which says: "...liberty gives substantial protection to adult persons
in deciding how to conduct their private lives in matters pertaining to
sex." Many similar cases are likely since gay couples from 40 states
have trekked to
Massachusetts to get "married."
Even if a federal judge rejected the Florida couple's
case, due to DOMA, it could be
appealed to the U.S. Supreme Court, which is likely to declare DOMA
unconstitutional, given its ruling in the Lawrence case. That would lead to
the forced recognition of "same-sex marriage" in all 50 states, even though
Congress and 44 states define marriage as the union of a man and a woman.
The Marriage Protection Act provides a remedy. It was
introduced by Rep. John
Hostettler who argues, "The nation's founders never intended for the
judiciary to be the most powerful branch of government."
That will be debated in the weeks ahead. At present,
the bill has no chance in the Senate, where court-stripping is seen as a
radical step. But it requires only 51 Senators to pass it.
This column put a spotlight on the Hostettler bill as
an alternative to the Federal Marriage Amendment last November.
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