By Bob Roehr
The House Judiciary Committee moved to prohibit federal courts from ruling on the constitutionality of the antigay Defense of Marriage Act (DOMA), even while debate on the Federal Marriage Amendment (FMA) still echoed in the Senate.
The Marriage Protection Act of 2003 (MPA) passed the committee by a 21 to 13 vote, essentially along party lines, on July 14. It is likely to come to a vote on the floor of the House the week of July 19.
The MPA is a 'court-stripping' measure introduced by social conservative John Hostettler, R-Ind., last October as a fall-back position to the FMA. It would remove authority for lower federal courts to hear cases on DOMA, which was passed in 1996.
Article II, Section 2, clause 2 of the Constitution deems that lower federal courts are the creation of Congress and as such, Congress may limit their jurisdiction. The provision is a source of debate among legal scholars and Congress has almost completely avoided testing the limits of this authority in this area.
Committee chairman F. James Sensenbrenner, Jr., R-Wisc., said the MPA 'leaves state courts with jurisdiction to decide certain classes of cases.' His colleague Tammy Baldwin. D-Wisc., the only out lesbian in Congress and a member of the committee, disagreed. She called it 'unnecessary, unconstitutional, and unwise.'
'The court-stripping measure seeks to stop the judicial branch from doing its job and to shut the door to married gay and lesbian couples who deserve their day in court,' said Christopher Anders, a legislative counsel for the American Civil Liberties Union (ACLU).
'The Senate rejected the discriminatory marriage amendment, and the House should also reject these stealth attempts to legislate discrimination.'
'Jurisdiction-stripping has been proposed just about every time the Court has done something controversial,' explained constitutional scholar Dale Carpenter, a law professor at the University of Minnesota.
'It came closest, perhaps, in the 1950s in the aftermath of Brown v. Board when Southern congressmen proposed stripping the courts of power to hear school desegregation cases. It failed then, when the country was much more riled up than it is now.'
Legal scholars voiced their reservations about court-stripping legislation in testimony before the House Judiciary Constitution subcommittee June 24.
Northwestern University School of Law professor Martin H. Redish cautioned, 'Several guarantees contained in the Constitution—due process, separation of powers, and equal protection—may well impose limitations on the scope of congressional power.' He feared that congressional attempts to rein in the courts 'would risk undermining public faith in both Congress and the federal courts.'
Michael J. Gerhardt, a professor at the William & Mary Law School, was even more blunt. 'Jurisdiction-stripping raises some profound questions of constitutional law ... . If Congress acts with the purpose and effect of violating a constitutional right, that violates the Constitution.'
'If Congress withdraws or restricts federal jurisdiction for a particular class of American citizens or based on the exercise of fundamental rights, that violates the Fifth Amendment. In short, Congress cannot use its power to restrict federal jurisdiction in ways that violate rights and equal protection, offends federalism, or infringes separation of powers.'
'Distrust of 'unelected judges' does not qualify as a legitimate basis, much less a compelling justification, for congressional action. 'Unelected judges,' in the form of our federal judiciary, are integral to protecting the rule of law in our legal system, balance of power among the branches, and protecting unpopular minorities from the tyranny of the majority,' Gerhardt said.
Majority Leader Tom DeLay, R-Texas, told reporters July 14 he would use 'court-stripping' legislation to take on a number of controversial issues, not just gay marriage.
The political newspaper The Hill said he planned to stop federal courts from hearing lawsuits related to the words 'under God' in the Pledge of Allegiance. DeLay said the time is 'not quite ripe' to apply the GOP's new legislative tactics to the issue of abortion.
The sheer scope of DeLay's anticipated use of the tactic is likely to stiffen the resolve of Democrats, moderates, and traditional conservatives in opposing the measure.
