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July 24, 2004
Column #1,195

                     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 regret."

     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 Marbury vs. 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 is legal.

"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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