Plan B: Republicans Legislate in House when Marriage Amendment Fails in Senate

When the Senate was unable to bring the Federal Marriage Amendment to a vote, the House stepped in and approved a bill that would prevent federal courts from reviewing the Defense of Marriage Act.

What’s the Defense of Marriage Act?

The Defense of Marriage Act (DOMA) was passed by Congress and signed by President Clinton in 1996; the law defines marriage as a union between a man and a woman and says that no state must recognize same-sex marriages granted by any other state.

It’s possible for a federal court to rule DOMA unconstitutional, since the Constitution requires each state to respect the laws of every other state in its "full faith and credit" clause. However, this bill, called the Marriage Protection Act, would prevent federal courts from considering the constitutionality of DOMA.

Limiting the courts

In effect, the Marriage Protection Act limits federal courts’ jurisdiction. Many Democrats claim that this is unconstitutional and upsets the balance of power among the executive, judicial, and legislative branches of government. The bill would give Congress the power to tell the judiciary which laws it can interpret and which it must ignore - this is in addition to its powers to create the laws and approve judicial nominations.

Some Democrats warn that this bill could set a dangerous precedent. If Congress limits the power of the judiciary on this issue, other issues, such as abortion and gun control, could follow.

They also note that Congress has not stripped federal courts of their powers since 1868, when lawmakers worried that the courts might interfere with the Reconstruction of the South after the Civil War.

But Republicans argue that the measure is appropriate and necessary. They say that the Marriage Protection Act returns the issue to the states where it belongs. By preventing federal courts from trumping states’ power, states will be able to determine and defend their own marriage laws, Republicans said.

The state/federal debate

When debating the Federal Marriage Amendment, which would alter the U.S. Constitution to prevent gay and lesbian marriages, Democrats argued that marriage has always been a state issue and that the federal government should not intervene.

Republicans argued that a federal amendment was the only way to prevent "activist" judges from permitting same-sex marriage.

In the debate on the Marriage Protection Act, the tables turned. Republicans argued that marriage has always been a state issue, so state courts, not federal courts, should handle the matter, while Democrats argued that preventing federal courts from considering the issue of same-sex marriage is unconstitutional.

So is same-sex marriage a state or a federal issue? The Bill of Rights provides states with the power to determine their own marriage laws; however, the U.S. Constitution’s full faith and credit clause requires states to respect one another’s laws. So, arguably, the Constitution requires Texas to honor a Massachusetts same-sex marriage, making the issue federal. This question has yet to be resolved by the courts.

Additionally, the Defense of Marriage Act brought the issue of marriage into the federal realm since it defines marriage for the nation.

If the Marriage Protection Act passes, it will prevent the Supreme Court from determining whether or not a state must honor a same-sex marriage granted by another state.

Will the Marriage Protection Act pass?

The House passed the Marriage Protection Act 233-194. But it’s likely to face considerable opposition in the Senate, where some Republicans joined Democrats to block the Federal Marriage Amendment.

Democrats argue that neither of the measures have a chance of passing, but that Republicans are bringing up the issue in order to appeal to their base of voters who strongly oppose gay and lesbian marriages.

Is the bill constitutional?

Constitutional scholars disagree. Some say that the law is constitutional and point to Article III, Section II of the Constitution, which reads, in part, "In all the other Cases before mentioned [cases other than those where an ambassador, a public Minister or Consul, or a U.S. State is one of the parties], 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" [Emphasis added].

To some, this means that Congress can make exceptions and regulations to the Supreme Court’s jurisdiction; therefore, the Marriage Protection Act is constitutional.

Others argue that the exceptions and regulations language is clearly talking about the Supreme Court's appellate jurisdiction only. From this point of view, Congress cannot prevent all federal courts from considering a federal question.

In other words, Congress can refuse the Supreme Court appellate jurisdiction over certain federal questions, so long as some federal court is given jurisdiction over those questions. But Congress may not deny all federal courts the power to consider federal questions.

How will this bill affect marriage?

Since the Marriage Protection Act will probably fail in the Senate, it is unlikely to affect the legality of same-sex marriage. However, the bill shows voters that Republicans are willing to fight gay and lesbian marriage, so it may affect the November elections.

What else is at issue?

Once again the biggest issues of all are:

• Should the Constitution be used to tell people how to manage their private lives?
• Do people have a right to be wrong, if their behavior is not affecting anyone else?
• What is government for?

Learn more

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Posted on: 7/30/2004