House takes up bill prohibiting judges from ruling on marriage

BY Advocate.com Editors

July 22 2004 12:00 AM ET

Federal judges should keep their hands off marriage, House Republicans said Thursday, pressing for passage of legislation to give states final say over recognizing same-sex unions sanctioned elsewhere. Federal judges, who are unelected and given lifetime appointments, "must not be allowed to rewrite marriage policy for the states," Rep. Sue Myrick (R-N.C.) said at the start of a debate tinged by election-year politics. Republican leaders predicted easy passage for the Marriage Protection Act a week after the Senate dealt same-sex marriage opponents a setback by failing to advance a constitutional amendment to ban gay marriage. The legislation, authored by Rep. John Hostettler (R-Ind.), would strip the Supreme Court and other federal courts of their jurisdiction to rule on challenges to state bans on gay marriages under a provision of a 1996 federal law that defines marriage as a union between a man and a woman. The Bush administration supports the measure.

Democrats said the bill's supporters are trying to distract voters from the GOP's failure to pass a budget and other major legislation while at the same time appeal to social conservatives, who are a key Republican constituency. "This bill is quite simply a mean-spirited, misguided, and discriminatory distraction," said Rep. Jim McGovern (D-Mass.). "The leadership of the House has decided to throw its political base some red meat." McGovern said Republicans' desire to rein in federal judges rings hollow three years after the 5-4 Supreme Court decision that handed George W. Bush the presidency. "They had no problem with activist judges in Bush versus Gore," he said.

Adding to Democrats' sense that the House legislation is motivated by politics is that no federal court has yet ruled on 1996's Defense of Marriage Act. "The legislation is premature," Rep. Jerrold Nadler (D-N.Y.) told the House Rules Committee Wednesday. Nadler said he believes the legislation is unconstitutional, but legal scholars say the constitutional question of stripping jurisdiction from federal
courts is unresolved. "My sense is that Congress has explicit authority in the Constitution...but it is a largely unexercised power," said Douglas Kmiec, a Pepperdine University constitutional law professor and former legal adviser to Republican presidents.

While Republicans defended states' rights, Democrats said the phrase recalled Southern opposition to desegregation, which was propelled by a series of federal court rulings. "Today, it's gay marriage. Tomorrow, it could be something else. It's very dangerous for any Congress to move down this road," said Rep. John Lewis (D-Ga.), a civil rights leader. Some Republicans also cited their desire to avoid setting a precedent that could be used by a Democrat-controlled Congress to satisfy their allies or by lawmakers who wanted to shield future unconstitutional legislation from federal court review. However, Hostettler said the issue is too important to ignore. "Simply put, if federal courts don't have jurisdiction over marriage issues, they can't hear them. And if they can't hear cases regarding marriage policy, they can't redefine this sacred institution," Hostettler said when he introduced the legislation in May.

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