Dubious GOP Marriage Bill

The Marriage Protection Act faces constitutional hurdles

Republican congressional leaders, after suffering a losing vote on the Federal Marriage Amendment (FMA) in the Senate, reverted to alternative legislative strategy on July 14, pushing through a proposed “Marriage Protection Act” in the House Judiciary Committee. The bill is expected to win approval on the floor of the House during the week of July 19.

The Marriage Protection Act, originally introduced last October by Rep. John Hostettler, an Indiana Republican, is meant to solidify the Defense of Marriage Act (DOMA), which former Pres. Bill Clinton signed into law during his 1996 re-election campaign as part of a deal to keep the same-sex marriage issue out of the electoral arena.

DOMA does two things. First, it allows respective states from recognizing same-sex marriages performed in other states. Second, it defines marriage, for purposes of federal judicial interpretation, as the union of one man and one woman.

Many legal scholars have suggested that DOMA is unconstitutional, or at least raises serious questions of constitutionality. Advocates of amending the Constitution argue that the provision is necessary to “protect marriage” in case DOMA is declared unconstitutional by the courts.

Having failed to advance the amendment because 50 senators voted against cutting off debate, effectively blocking an up-or-down vote on the amendment (which would have required a two-thirds majority), the Republican leaders now argue that the next best thing would be finding a way to stop the courts from declaring DOMA unconstitutional.

One way might be to keep the courts from hearing any lawsuit that would require them to rule on the constitutionality of DOMA. That’s what the Marriage Protection Act is intended to do. It states that no federal court, including the Supreme Court, “shall have any jurisdiction… to hear or determine any question pertaining to the interpretation” of DOMA. According to the brief summary of the bill in its official print, it is intended “to limit Federal court jurisdiction over questions under the Defense of Marriage Act.”

Some legal scholars debate whether Congress is legally entitled to pass a law that prevents the federal courts from ruling on the constitutionality of another federal law.

Section 1 of Article III in the Constitution states that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Section 2, after describing the extent of the judicial branch, provides that in certain kinds of cases the Supreme Court will have “original jurisdiction” (the power to hold actual trials and decide both the facts and the law), but in other cases, it will have “appellate jurisdiction… with such Exceptions, and under such Regulations as the Congress shall make.”

Taken together, these Article III provisions have been interpreted by some authorities to mean that Congress can decide which cases the lower federal courts can decide, and can legislate exceptions to the overall appellate jurisdiction of the Supreme Court. But to date, the Supreme Court has never ruled on whether this means that Congress can pass a law stating that the Supreme Court lacks authority to determine whether a particular statute is constitutional or not. Such a law would seem to go against the very balance of powers in the Constitution, under which the Supreme Court is set up to be the final arbiter of whether a particular law is constitutional. Thus, argue some legal scholars, there are good grounds to question the constitutionality of H.R. 3313.

According to several news reports last week, Republican leaders who are dissatisfied with several recent Supreme Court decisions, including the 2003 decision to overturn the nation’s sodomy statutes, are considering possible “court stripping” bills that would take away the authority of the federal courts to rule on various other subjects. During the 1980s, some Republicans had proposed, for example, that the federal courts be deprived of authority to consider whether state laws regulating access to abortion were constitutional. Some Republican legislators are currently considering whether to deprive the courts of the authority to decide affirmative action and saluting the flag cases.

Reducing the scope of aggrievements that can be brought before federal courts leaves the state courts as the only appellate resort, but the authority of state courts to invalidate federal laws would present a novel question, and the ability of state courts to order federal agencies to take action contrary to a federal statute, on the ground that the statute is unconstitutional, would be even more problematic.

The recent same-sex marriages legalized in Massachusetts may provoke such questions, if, for example, a gay or lesbian couple married there were to sue the Internal Revenue Service about whether the federal gift tax applied to a transaction where spouses would be exempt from paying the tax. According to H.R. 3313, the federal court would not have jurisdiction of the case, because an interpretation of DOMA would be required to resolve it. But could a state court order the I.R.S. to honor the claimed exemption? Under the federal system, states don’t get to determine federal tax policy.

Supporters of the House bill predict that it will easily pass the floor vote by the necessary majority in a chamber led by Republicans.

In the Senate, the bill might also easily pass if allowed to come to a vote, as only a bare majority is required, unlike a constitutional amendment, so the key question is whether enough of the senators who voted against cutting off debate on the FMA would also vote against cutting off debate on the Marriage Protection Act, effectively setting a 60-vote hurdle for passage. Since many of those senators whose votes were crucial on July 14 argued that a constitutional amendment was not needed because of the existence of the Defense of Marriage Act, a bill that would shield DOMA from being struck down in federal court might strike them as a good idea.

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