In this issue:
- House Action on Marriage a "Mixed Blessing"
- Congress Watch
- Netherlands Researchers Warn on Tampering With Marriage
- House Vote on H.R. 3313
- Other News Items of Interest
- We Need Your Help to Defend Marriage
House Action on Marriage a “Mixed Blessing”
Dear Marriage Defender,
H.R. 3313, passed last week by the House of Representatives
to limit judicial review of the Defense of Marriage Act (DOMA),
may well be a mixed blessing.
The bill, called the Marriage Protection Act, exercises Congress’ authority under Article III, Section 2 of the Constitution to limit the jurisdiction of the federal courts -- an approach sometimes referred to as “jurisdiction stripping.” The bill provides, in part, that no federal court (including the Supreme Court) has the power “to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of,” DOMA or H.R. 3313 itself. While Congress has limited the jurisdiction of federal courts in previous legislation, H.R. 3313 may well be the only instance in history where Congress has attempted to remove all questions related to the constitutional validity of federal legislation from the federal courts.
To be sure, DOMA has several provisions that are essential to protecting marriage. DOMA provides that, for purposes of federal law, marriage in the United States consists only of the union of a man and a woman. DOMA also provides that no state can be forced by the federal courts to legally recognize “same sex marriages” performed in another state. H.R. 3313 attempts to insure that these provisions remain the law of the land unless or until Congress amends DOMA or repeals H.R. 3313.
So, why is passage of this bill only a mixed blessing? Because there are serious questions whether H.R. 3313 can truly defend marriage in this country.
I lay out some of my concerns in more detail in a short essay, but let me summarize several of them briefly.
For one thing, it is hardly clear that H.R. 3313 itself is constitutional. The consensus of the legal academy (led by Harvard law professor Laurence Tribe) is that Congress may not enact legislation such as H.R. 3313. The Supreme Court, for its part, has also recently cast doubt upon the scope of congressional power under Article III, Section 2. Furthermore, H.R. 3313 can itself be repealed. Thus, any true “protection” given DOMA (or marriage) by H.R. 3313 is questionable at best.
Another substantial problem is that H.R. 3313 does nothing to limit the jurisdiction of state courts with regard to the Constitution and marriage. Under the Supremacy Clause, the federal Constitution is the supreme law of the land – and Congress may not limit the jurisdiction of state courts to consider and interpret the federal Constitution. Accordingly, even if the Supreme Court upholds the legislation, H.R. 3313 will create a “vacuum” with regard to the federal constitutional meaning of marriage. And, since nature abhors a vacuum, the state courts will quickly fill that space.
If H.R. 3313 had been law a year ago, the Massachusetts Supreme Judicial Court would have been delighted to pronounce that “same sex marriage” is required – not only by the state constitution – but by the federal Constitution as well. Other states will take other positions. In short order, H.R. 3313 could result in 50 different interpretations relating to the Constitution and marriage.
This is a prescription for legal chaos that will save neither marriage nor the Constitution.
Most problematically for marriage defenders, H.R. 3313 may diminish support for more effective measures. Because jurisdiction stripping seems (at least on the surface) to “fix” the marriage-in-the-courts controversy, the legislation might lull some into thinking that the “problem” has been resolved. This could result in less pressure for a constitutional amendment or even split the ranks of marriage supporters. Neither would be helpful.
So, what are “upsides” of H.R. 3313? The bill brings, perhaps, a few tactical advantages.
If subsequently adopted by the Senate, a jurisdiction stripping provision could buy more time to amend the Constitution. That would be a plus. With the first legal challenges to the federal DOMA how being readied, we may have as little as three years before a test case will come before the Supreme Court. That is not much time to get a constitutional amendment through the ratification process. Since most legal scholars believe the Supreme Court will find DOMA unconstitutional, additional litigation surrounding H.R. 3313 – which could stretch out challenges to DOMA itself – may be helpful.
Furthermore, the House debate on H.R. 3313 forced members of Congress to go on the record on a marriage-related issue.
However, since H.R. 3313 was not a vote on a constitutional amendment, and some members who might actually support an amendment are opposed to taking this unprecedented jurisdiction stripping approach, the vote on H.R. 3313 is not a “clean” vote on marriage. (In this respect, it is somewhat similar to the Senate vote several weeks ago, which was on a procedural move to cut off debate rather than on the issue itself.)
But, just as with the Senate vote, we should assume that every House member who voted against H.R. 3313 is not opposed to the courts imposing “same sex marriage” on the entire country – at least until they clearly explain otherwise.
We have listed the vote in the House in this newsletter. Since the House leadership has indicated that a vote on the Federal Marriage Amendment itself is likely in September, you can use this vote to determine whether your Representative needs to hear from you about defending marriage during the six-week summer recess.
All in all, July has proven to be an extraordinary
month in the fight to defend marriage and the family.
We have had reasonably accurate test votes on the issue in both
the Senate and the House. The issue has now clearly moved into
voter consciousness as one of the major issues of the upcoming
election cycle.
Millions more Americans are now aware of the threat to marriage
and are beginning to understand what must be done to defend
it. Grassroots groups defending marriage have gained additional
momentum in mobilizing their supporters.
Not a bad month.
While we are building momentum to defend marriage, there is still much to do. No one should underestimate the difficult task we face. Amending the Constitution to preserve marriage will require the best efforts of millions.
We are certainly making a good start.
Sincerely,
Richard G. Wilkins
Chairman
P.S. You can help defend marriage even more by forwarding this
newsletter on to others who might be willing to help!
Congress Watch
The House of Representatives on July 22nd by a vote of 233-194 passed the Marriage Protection Act sponsored by Indiana Rep. John Hostetler. The bill would strip the federal judiciary of jurisdiction over the federal Defense of Marriage Act, essentially ensuring that it will remain law until changed by Congress. For a quick overview of House action, articles available here and here.
The vote in the House on this bill is also included in this newsletter.
Netherlands Researchers Warn on Tampering With Marriage
Five Dutch researchers have warned that the increasing acceptance of same sex marriage in The Netherlands has led to a decline in marriages overall and changed the way young people view this institution. They note that “Until the late 1980’s, marriage was a flourishing institution in The Netherlands. The number of marriages was high, the number of divorces was relatively low compared to other Western countries, the number of illegitimate births also low. It seems, however, that legal and social experiments in the 1990’s have had an adverse effect on the reputation of man’s most important institution.”
While they say that there is no definitive connection, this decline “there are good reasons to believe the decline in Dutch marriage may be connected to the successful public campaign for the opening of marriage to same-sex couples in The Netherlands.” They conclude that in light of the proven disadvantages children raised outside of a traditional family face, “A national debate about how we might strengthen marriage is now clearly in order.”
An unofficial translation of the letter, provided courtesy of the Institute for Marriage and Public Policy is posted on our Web site here.
Other News Items of Interest
- In “Gay ‘marriage’ likely to shape races,” The Washington Times surveys the impact the political maneuvering in Congress on this issue in July could have on elections across the country. Article here.
- The Christian Science Monitor in its article, “Political ripples in the marriage debate,” also examines the political impact of the same sex marriage issue, available here.
- In “Romney seen as face of the future,” The Washington Times examines the role Massachusetts Governor Mitt Romney will be playing in criticizing Sen. John Kerry on same sex marriage and other issues during the Democratic Convention in Boston and beyond. Article here.
- Agape Press reports in “Attorney Says DOMA Challenge Floodgates Open” that a suit recently filed in a Florida federal district court is merely the first of a flood of such lawsuits being readied around the country. Article here.
House Vote on Marriage Protection Act
FINAL VOTE RESULTS FOR ROLL CALL 410
(Republicans in roman; Democrats in italic; Independents
underlined)
A “yea” vote is a vote for the Marriage Protection Act.
H R 3313 YEA-AND-NAY 22-Jul-2004 3:53 PM
QUESTION: On Passage
BILL TITLE: Marriage Protection Act of 2004
| YEAS | NAYS | NV | |
| REPUBLICAN | 206 | 17 | 5 |
| DEMOCRATIC | 27 | 176 | 3 |
| INDEPENDENT | 1 | ||
| TOTALS | 233 | 194 | 8 |
YEAs ---233 |
|||
Aderholt |
Doolittle |
Kingston |
Rogers (AL) |
NAYs ---194 |
|||
Abercrombie |
Emanuel |
Lantos |
Reyes |
Not Voting ---8 |
|||
Carson (IN) |
Greenwood |
Kucinich |
Paul |
We Need Your Help to Defend Marriage!
Now that the fight to defend marriage and the family has entered a new and critical stage, we especially need your financial support. Just one of the homosexual activist groups has now launched the second phase of a multimillion dollar advertising campaign to sway public opinion nationally against a constitutional amendment. All of these groups understand that this is the showdown battle for them and they are pouring money into the fight.
Please consider making as generous a contribution as you can to defend marriage and the family. Defend Marriage is a project of United Families International (UFI), a 501 (c )(3) organization, so your contribution is tax deductible.
If you would like to designate your contribution to UFI to go entirely to the Defend Marriage Project, you can easily do so by making a contribution that ends with 4 cents, i.e. $25.04, $173.04, $1,000,000.04 and so on. That will automatically flag it to be applied entirely to Defend Marriage. You can easily and securely make a contribution online or print out a form to mail in a contribution.
Thank you in advance for your generous support!
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Phone: (480) 632-5450 • FAX: (480) 892-4417