Marriage Protection Act of 2004

MARRIAGE PROTECTION ACT OF 2004 -- (House of Representatives - July 22, 2004)

Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 734, I call up the bill (H.R. 3313) to amend title 28, United States Code, to limit Federal court jurisdiction over questions under the Defense of Marriage Act, and ask for its immediate consideration.

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Mr. UDALL of Colorado. Mr. Speaker, it is a cliché to say that there is no perfect legislation. But, to use another cliché, this bill seems to be an exception that proves that rule-because it is not only perfectly unnecessary but also a perfectly bad idea.
The bill seeks to prevent any Federal court-including the U.S. Supreme Court-from deciding "any question pertaining to the interpretation of, or the validity under the Constitution" of the part of the "Defense of Marriage Act" (DOMA) that says no State is required to give legal recognition to a same-sex relationship that is treated as a marriage under the laws of any other State. It also is intended to prevent any Federal court review of the constitutionality of this bill itself.

That would mean that the State courts alone would have the power and responsibility for interpreting two Federal laws. I cannot support that.

My opposition does not mean I think State court judges are not qualified to decide such questions. I have very high regard for their ability and for the vital role that the States and their courts play in our Federal system.

But I have an even higher regard for the fact that each State is a part of a greater whole-of the United States-which make up one nation, based on the principles of "liberty and justice for all," in the words of the Pledge of Allegiance.

And this bill directly attacks that national unity, seeking to replace it with a system in which each of the 50 State supreme courts would be the final authority on important questions involving relations between the States and between the Legislative and Judicial branches of the Federal Government.

This is not only unnecessary-no court, State or Federal, has ruled on DOMA-but both possibly unconstitutional and definitely dangerous.

I say possibly unconstitutional because the Judiciary Committee's report and today's debate show there are strong disagreements about the constitutionality of the bill, even among Members with much greater legal expertise than I can claim.
But while its constitutionality seems doubtful at best, I have no doubt about the bill's dangers and I am convinced that whether or not it is constitutional, it should be rejected.

In reaching that conclusion, I find myself in agreement with our former colleague, the gentleman from Georgia, Bob Barr.
In a letter of July 19th, Mr. Barr notes the potential for the "chaotic result" of "50 different interpretations reached by State supreme courts, with no possibility of the U.S. Supreme Court reversing any incorrect interpretation" of the Federal laws involved.

But he then goes on to say that the "principal problem" with the bill is even worse: "H.R. 3313 will needlessly set a dangerous precedent for future Congresses that might want to protect unconstitutional legislation from judicial review. ..... The fundamental protections afforded by the Constitution would be rendered meaningless if others follow the path set by H.R. 3313."

I completely agree with than analysis. And Mr. Barr and I are not alone in that view. In more or less the same terms, it is echoed by many others, including the Leadership Conference on Civil Rights, the Mexican-American Legal Defense and Educational Fund, Legal Momentum, and the Human Rights Campaign.

Of course, this bill does have its supporters, and in fact may attract a majority when we vote today. But if today there is a majority for putting DOMA beyond Federal judicial review, tomorrow there may be a different majority with a different idea of what legislation should be given such status.

Will tomorrow's majority want to protect future gun-control laws from the judges who struck down the Gun-Free School Zones Act? Or will they want to prohibit the Federal courts from ruling on such matters as State immunity from certain lawsuits? Or might they seek to reverse Roe v. Wade or some other Supreme Court decision by passing a new law and prohibiting the courts from reviewing it?

None of us can know the answers to those questions, because nobody knows what the future holds. But I am convinced that what we do today could shape the future in ways that could undermine the checks of the balances of the constitution and thus weaken the restraints on legislative power that protect the liberties of all Americans.

And because I think it would be profoundly unwise to risk so much on such a radical experiment, I will vote against this bill.

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Mr. UDALL of New Mexico. Mr. Speaker, I rise today to strongly oppose H.R. 3313, the so-called "Marriage Protection Act." There is nothing in this bill that will provide protection to us or to the institution of marriage. On the contrary, this bill will create an extremely dangerous precedent in our legislative system and could cause inculculable harm.

When I was sworn in as a member of this House, I promised to uphold the Constitution of the United States. Every member of this body made the same promise. The Majority's push for passage of this bill sadly signals a step back from that promise and further calls into question the true motivations of the bill's supporters.

The unconstitutionality of this bill is quite clear. The 14th Amendment to the U.S. Constitution reads, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." By denying Americans who wish to challenge the Defense of Marriage Act their day in federal court, H.R. 3313 blatantly violates this equal protection clause. The bill singles out a specific group of Americans and tells them that they cannot have their day in court, thereby denying them due process.

Moreover, this bill violates the separation of powers. Our democracy is reliant upon an independent judiciary, and judicial review is a crucial part of our system of checks and balances. By adding a clause to a bill stipulating that cases against it must not be heard by federal courts as H.R. 3313 does, we are overreaching our powers to legislate.

If this bill passes the House today, I ask the leaders in the Majority: What's next? If we enact a bill into law saying that Defense of Marriage Act cases cannot be heard in federal courts, where do we stop? School prayer, gun control, abortion, obscenity-shall we say that none of these issues may be heard in federal court? What issue or group of people will be next?

Broad opposition to this bill from my constituents and colleagues gives me hope that this bill may not make its way to the President's desk. Those opposed include the Lawyer's Committee for Civil Rights Under Law, Human Rights Watch, the American Civil Liberties Union, the Alliance for Justice, and even former Representative Bob Barr, the original sponsor of the Defense of Marriage Act. These groups represent only a small portion of those firmly opposed to this bill.

The fact is, this debate is not about supporting or opposing gay marriage. Rather, it is about the cost of passing a bill that would result in the revocation of constitutional rights for certain Americans. This bill is a drastic, misguided piece of legislation with strictly political aims, and if this bill passes, it will be a tragic day for democracy. I strongly urge my colleagues on both sides of the aisle to vote against this bill, and to preserve the constitutional rights of all Americans.