September 29, 2004
Private: Marriage Protection Act Threatens to Strip Federal Courts of Their Jurisdiction
Column by Colleen Berry, Editor-at-Large
On July 22, 2004, the Marriage Protection Act (MPA) was passed in the House of Representatives by a vote of 233-194. This legislation, if also ratified by the Senate, would effectively prevent federal courts from reviewing the constitutionality of its predecessor, the Defense of Marriage Act (DOMA). Thus, adopting the MPA into law would have a two-fold effect: states could continue to prohibit the institution of marriage from gay and lesbian couples, but the legislation would also prevent the Supreme Court from reviewing the constitutionality of such an exemption.
The 1996 Defense of Marriage Act (DOMA) says that no state is required to recognize the legitimacy of any same-sex marriage formed in another state. Supporters of DOMA assert that states disfavoring same-sex marriage should not be required to recognize another state's same-sex marriage laws. DOMA's challengers point to the full faith and credit clause of the Constitution, which requires the states to acknowledge each others' laws. In anticipation of DOMA being reviewed by the Supreme Court as a possible violation of the Constitution, Representative John Hostettler (R-Indiana) introduced the MPA in October of last year. The bill reads, "No court created by of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section." Thus, the MPA would prevent the federal courts from ever reviewing the possibe unconsitutionality of DOMA.
In support of his bill, Mr. Hostettler said, "Marriage is a divinely ordained institution, not a social experiment to be reinvented and redefined by a handful of unelected elites. The courts do not have the constitutional authority to redefine words and institutions in order to comport with judges' ideologies or whims." Indeed, the rights of individuals as well as the rights of the federal judiciary are at issue in Mr. Hostettler's legislative proposal. Opponents of the bill attack its constitutionality on both counts.
At its core, the bill's controversy arises in the Constitution's articulation of the Judiciary's jurisdictional reach. Article III, Section 2 states that "the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." This somewhat ambiguous language has borne two ideologies in regard to the Constitution's interpretation. As it applies to the MPA, the federalist group argues that the Constitution does not confer upon the Supreme Court a right to review the constitutionality of any Congressional legislation. Conversely, the more progressive view asserts that the Supreme Court must function as the ultimate arbiter of the Constitution.
According to the American Civil Liberties Union (ACLU), "The sole objective of the Marriage Protection Act is to prohibit federal courts from reviewing the Defense of Marriage Act because some supporters of the Marriage Protection Act believe that the federal courts, including the U.S. Supreme Court, will find DOMA to be unconstitutional. Denying the courts the ability to review a law for its constitutionality because of a concern that the law might be unconstitutional does not serve any legitimate purpose of government."
This view by the ACLU is cited by a group of 14 Representatives who drafted a dissenting opinion of the MPA's passage in the House. The document rebukes the MPA for being unsupported by precedent, and in violation of the 5th and 14th Amendments of the Constitution. The dissenters include Tammy Baldwin (D-Wisconsin), who said of the bill, "It is a terrible mistake to strip one branch of government from its involvement in evaluating particular laws, and this is so particularly true when considering the courts whose constitutional and historic role has been to defend our liberties. Once this door becomes open, where will it stop? Will this language be added to legislation on issues of abortion, guns, prayer, school choice, affirmative action? How about the USA PATRIOT Act? I suspect this is just the tip of the iceberg."
Although Republican legislators are at the helm of the bill's support, not all of the party's constituents are in favor of its passing. The Log Cabin Republicans, a Republican organization advocating gay and lesbian civil rights, are urging members and their affiliates to contact their local representatives to protest the bill. In a similar appeal to proactive citizens, the predominantly progressive ACLU has offered MPA opponents an opportunity to send a free fax directly to local representatives.
The Marriage Protection Act was referred to the Senate on September 7 of this year, and is currently in the Senate's Committee of the Judiciary. For more information about the bill's status, click here.