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House passes bill preventing federal courts from legalizing ‘gay marriage’

WASHINGTON (BP)–The House of Representatives passed a bill July 22 that prevents federal courts from legalizing same-sex “marriage” nationwide, giving traditionalists a significant victory just one week after the Senate blocked a vote on a constitutional marriage amendment.

The bill, dubbed the Marriage Protection Act, passed on a mostly party-line vote of 233-194. It faces an uncertain future in the Senate but has the support of President Bush.

The bill protects states by preventing federal courts — including the Supreme Court — from reviewing the Defense of Marriage Act, the 1996 law that gives individual states the option of not recognizing another state’s same-sex “marriages” and prevents the federal government from recognizing homosexual “marriage.”

The 1996 law, sometimes called DOMA, has been the focus of much attention since Massachusetts became the first state to legalize homosexual “marriage.” A lawsuit was filed July 20 against DOMA by a lesbian couple who received a marriage license in Massachusetts.

The major pro-family groups — including the Family Research Council, the Southern Baptist Ethics & Religious Liberty Commission and Concerned Women for America — supported the bill as a short-term solution until a constitutional amendment can be passed.

“This should be a warning to politicians everywhere that this is an issue that is not going away and it is an issue where there is tremendous interest and conviction,” ERLC President Richard Land told Baptist Press.

The bill’s passage, Land said, “furthers the momentum” of the defense of marriage movement.

“It does send a message to the judiciary that people are really getting fed up with their attempts to become our unelected rulers,” he said.

But Land said a constitutional marriage amendment is still needed.

“[The bill] is still only a law, which is subject to judicial interpretation and could be stricken down by the courts, as opposed to a constitutional amendment, which is sovereign over the court — not subject to the court’s interpretation.”

The bill passed with the support of 206 Republicans and 27 Democrats. Voting against it were 176 Democrats, 17 Republicans and one independent.

Supporters in the House said it was necessary to protect the nation from “activist judges.”

“The court is not the only repository of wisdom nor of due process,” Rep. Henry Hyde, R.-Ill., said. “Democracy requires checks and balances — we know that. [But] what is the check and balance on the Supreme Court?”

Opponents, though, said it was unconstitutional and called it “court-stripping.” Ironically, it likely faces a challenge in court.

Rep. Jerrold Nadler, D.-N.Y., who voted against the bill, argued that it sets a bad precedent for Congress to pass similar bills whenever it dislikes a court ruling.

“[W]e are playing with fire with this bill, and that fire could destroy the nation we love,” he said.

But supporters said the Constitution gives Congress the power to regulate the courts. The bill’s chief sponsor, Rep. John Hostettler, R.-Ind., pointed to Article III, Section 2 of the U.S. Constitution, which states in part: “[T]he Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” Section 1 states that Congress “ordain[s]” and “establish[es]” the lower courts.

Hostettler also pointed to Article I, Section 8, and Article IV, Section 1.

“The United States Constitution is very clear — Congress has the authority to create inferior federal courts,” Hostettler said. “Congress [also] has the authority to make exceptions and regulations with regard to all of the appellate cases that come before the Supreme Court.”

Rep. John Dingell, D.-Mich., called the bill an “extraordinary piece of arrogance.” Rep. Jim McGovern, D.-Mass., called it a “mean-spirited, discriminatory and misguide distraction” and said it violated the “separation of powers.”

“Under this bill, for the first time in our long history, a person could be denied access to the federal courts when that person claims that a federal statute violates the Constitution,” McGovern said.

The bill put politicians who oppose a constitutional amendment by arguing for states rights in a tough position. The House is expected to vote on a marriage amendment in September.

“This is the position that many Democrats say that they support — all 50 states deciding for themselves how to define marriage rather than a one-size-fits-all definition being imposed upon them from above,” Majority Leader Tom DeLay, R.-Texas, said. “This bill is their opportunity to publicly adhere to that argument.

“If you support the states and respect the will of the American people, you must support this bill.”

Other supporters said the courts must be held in check and that the Constitution outlines the method.

“The question is, when the Supreme Court gets really goofy … what is the mechanism to hold them in check?” Rep. Todd Akin, R.-Mo. asked. “… The question before us is a question of whether or not a redefinition of marriage is going to be imposed on all of our states by a few activist judges.”

Opponents of the bill pointed to Supreme Court cases, such as Brown v. Board of Education, that gave minority African Americans their rights.

“If it had not been for the federal courts, I wouldn’t be standing here today,” said Rep. John Lewis, D.-Ga., an African American and a supporter of same-sex “marriage.”

The bill’s supporters, though, pointed to flawed Supreme Court rulings — such as the infamous Dred Scott v. Sanford case that said slaves had no rights.

“If every decision of the Supreme Court is gold, how about this one?” Akin asked. “What was the result of this little act of activism? They’re the wonderful folks who gave us the Civil War.”

Rep. James Sensenbrenner, R.-Wis., called the bill a “check on judicial power.”

“No branch of the federal government can be entrusted with absolute power, and certainly not a handful of tenured federal judges appointed for life,” he said. “The Constitution allows the exercise of judicial power, but it does not grant the federal courts the unchecked power to define the limits of its own power.”

The Defense of Marriage Act was passed in 1996 by a vote of 342-67 in the House and 85-14 in the Senate.
For more information about the national debate over same-sex “marriage,” visit

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  • Michael Foust