The House will soon vote on a marriage amendment to the U.S. Constitution, which requires a two-thirds vote in both chambers of Congress before it can be sent to the states for ratification.
Unfortunately, the amendment failed in the Senate last month, receiving only 49 votes. It is also destined to fail in the House: In the last Congress, it received only 227 votes, more than 60 shy of the super-majority needed.
But there is a way Congress can act this year to protect state marriage laws from activist liberal judges.
Rep. John Hostettler (R.-Ind.) has proposed a bill that would strip all federal courts, including the Supreme Court, of jurisdiction to hear any challenge to the Defense of Marriage Act (DOMA).
DOMA was signed by President Clinton in 1996 after it was approved 342-67 by the House and 85-14 by the Senate. It makes clear that state governments need not recognize same-sex marriages contracted in other states. The law was passed under Article 4, Section 1 of the Constitution, which provides that states shall give “full faith and credit” to the acts of other states, but gives Congress authority to regulate how that shall be done. In DOMA, Congress said it will not extend to recognizing other states’ same-sex marriages.
Hostettler’s Marriage Protection Act was originally considered by the House in 2004, and approved 223-194. Unlike a constitutional amendment, it requires only a majority vote to pass. The bill was never sent to President Bush, however, because the Senate did not vote on it.
The Marriage Protection Act rests on a solid constitutional foundation. Congress creates and has full power to set the jurisdiction of the lower federal courts. Article 3, Section 2 also gives it the authority to limit the appellate jurisdiction of the Supreme Court in all cases except those involving foreign ambassadors and ministers and where one state is suing another. Former Senate Majority Leader Tom Daschle (D.-S.D.) used this authority a few years ago to add a provision to an appropriations bill stripping the federal courts of jurisdiction to hear suits designed to stop forest clearing operations in South Dakota. Liberals did not question Daschle’s move, and no court dared overturn it.
Hostettler’s Marriage Protection Act has practical and political advantages. For starters, unlike the constitutional amendment, if pushed by the Republican leadership, it has a real chance of becoming law. That means state laws designed to protect traditional marriage will truly be protected from federal judges. Secondly, it is a tougher political test for Democratic congressmen trying to convince voters they are not out of touch with traditional American values. For these congressmen, voting for the marriage amendment is a “freebee”–and the Democratic leadership knows it. They can let their members in more conservative districts vote for the amendment precisely because they know it will not become law.
Precisely because the Marriage Protection Act can become law, Democratic leaders are fretful of letting even Red State Members vote for it–if they can help it.
The House should vote for the Marriage Amendment, and it deserves conservative support. But before the House leaders bring up the amendment, they should do something that is both more substantive and more politically potent: Pass Hostettler’s Marriage Protection Act.