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Committee Reports for the 108th Congress | |
| House Report 108-614 | 1 of 1 | |
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29-006
2d Session
108-614
--MARRIAGE PROTECTION ACT OF 2004
[To accompany H.R. 3313]
[Including cost estimate of the Congressional Budget Office]
- The Committee on the Judiciary, to whom was referred 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, having considered the same, reports favorably thereon with an amendment and recommends that the bill as amended do pass.
| CONTENTS | Page | |
| The Amendment | 2 | |
| Purpose and Summary | 2 | |
| Background and Need for the Legislation | 3 | |
| Hearings | 19 | |
| Committee Consideration | 19 | |
| Vote of the Committee | 19 | |
| Committee Oversight Findings | 21 | |
| New Budget Authority and Tax Expenditures | 21 | |
| Congressional Budget Office Cost Estimate | 22 | |
| Performance Goals and Objectives | 22 | |
| Constitutional Authority Statement | 22 | |
| Section-by-Section Analysis and Discussion | 23 | |
| Changes in Existing Law Made by the Bill, as Reported | 23 | |
| Markup Transcript | 23 | |
| Dissenting Views | 145 |
THE AMENDMENT
- The amendment is as follows:
- Strike all after the enacting clause and insert the following:
SECTION 1. SHORT TITLE.
- This Act may be cited as the `Marriage Protection Act of 2004'.
SEC. 2. LIMITATION ON JURISDICTION.
- (a) In General- Chapter 99 of title 28, United States Code, is amended by adding at the end the following:
`Sec. 1632. Limitation on jurisdiction
- `No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.'.
- (b) Amendments to the Table of Sections- The table of sections at the beginning of chapter 99 of title 28, United States Code, is amended by adding at the end the following new item:
| `1632. Limitation on jurisdiction.'. |
PURPOSE AND SUMMARY
H.R. 3313 prevents Federal courts from striking down the provision of the Defense of Marriage Act (28 U.S.C. Sec. 1738C) that provides that no state shall be required to accept a same-sex marriage license granted in another state.
H.R. 3313, the Marriage Protection Act, as amended, creates a new 28 U.S.C. Sec. 1632 that provides that:
- No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C 1
[Footnote] or this section.
[Footnote 1: Section 1738C of Title 28 of the United States Code is the provision of the Federal Defense of Marriage Act that states `No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.' Section 1738C of Title 28 of the United States Code was passed under Congress's authority under Article IV, section 1, of the Constitution, known as the `Full Faith and Credit Clause.' That clause provides that `Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.' U.S. Const., Art. IV, Sec. 1 (emphasis added).]
H.R. 3313 would prevent unelected, lifetime-appointed Federal judges from striking down the protection for states Congress passed in the Defense of Marriage Act (`DOMA')--by the overwhelming margin of 342-67 in the House and 85-14 in the Senate--that provides that no state shall be required to accept same-sex marriage licenses granted in other states.
H.R. 3313 does not attempt to dictate results: it only places final authority over whether states must accept same-sex marriage licenses granted in other states in the hands of the states themselves. H.R. 3313 stands for the proposition that lifetime-appointed Federal judges must not be allowed to rewrite marriage policy for the states.
BACKGROUND AND NEED FOR THE LEGISLATION
H.R. 3313 is necessary to prevent a handful of lifetime-appointed Federal judges from overturning the considered judgment of state citizens and their elected legislatures.
Currently, Federal judges are poised to overturn state marriage laws that rest on the principle that marriage is the union of one man and one woman. Yet today, 44 states (so far) have enacted laws that provide that marriage shall consist only of the union of a man and a woman. 2
[Footnote] These 44 states constitute 88% of the states, and they include 86% of the U.S. population.
[Footnote 2: Thirty-seven states enacted Defense of Marriage Act laws following enactment of the Federal DOMA. See Ala. Code Sec. 30-1-19; Alaska Stat. 25.05.013; Ariz. Rev. Stat. Ann. 25-101; Ark. Code Ann. 9-11-107; Cal. Fam. Code 308.5; Colo. Rev. Stat. Ann. 14-2-104; Del. Code Ann. Tit. 13, 101; Fla. Stat. Ann. 741.212; Ga. Code Ann. 19-3-3.1; Haw. Rev. Stat. 572-1; Idaho Code 32-209; 750 Ill. Comp. Stat. Ann. 5/212; Ind. Code 31-11-1-1; Iowa Code 595.2; Kan. Stat. Ann. 23-101; Ky. Rev. Stat. Ann. 402.040; La. Civ. Code Ann. Art. 89; Md. Code, Family Law, 2-201; Me. Rev. Stat. Ann. Tit. 19-a, 701; Mich. Comp. Laws Ann. 551.1, .271; Minn. Stat. Ann. 517.01; Miss. Code Ann. 93-1-1; Mo. Rev. Stat. 451.022; Mont. Code Ann. 40-1-401; Neb. Const. Art. I, 29; Nev. Const. Art. I, 21; N.C. Gen. Stat. 51-1.2; N.D. Cent. Code 14-03-01; Ohio Rev. Code 3101.01; Okla. Stat. Ann. Tit. 43, 3.1; 23 Pa. Cons. Stat. Ann. 1704; S.C. Code Ann. 20-1-15; S.D. Codified Laws 25-1-1; Tenn. Code Ann. 36-3-113; Tex. Fam. Code Ann. 6.204; Va. Code Ann. 20-45.2; Wash. Rev. Code Ann. 26.04.020; W. Va. Code Ann. 48-2-603. An additional six states--Connecticut, Maryland, New Hampshire, Utah, Wisconsin, and Wyoming--have laws recognizing marriage as the union between a man and a woman that predate the enactment of the Federal Defense of Marriage Act. See Ct.St. 45a-727a; Md.Family 2-201; N.H.St. 457:1-2; Utah Code Ann. 30-1-2; Wi.St. 765.01; Wy.St. 20-1-101. Vermont's law, while allowing same-sex civil unions, also defines marriage as the union of a man and a woman. See Vt.St. T.15 8.]
At least 38 states (so far) specifically reject by statute the recognition of same-sex marriage licenses granted out of state. 3
[Footnote] These states enacted such laws in reliance on 28 U.S.C. Sec. 1738C, the section of DOMA that H.R. 3313 protects from Federal interference.
[Footnote 3: See Ala. Code Sec. 30-1-19; Alaska Stat. 25.05.013; Ariz. R.S. 25-112; Ark. Code Ann. 9-11-107; Cal. Fam. Code 308.5; Colo. Rev. Stat. Ann. 14-2-104; Ct.St. 45a-727a; Del. Code Ann. Tit. 13, 101; Fla. Stat. Ann. 741.212; Ga. Code Ann. 19-3-3.1; Hawaii St. 572-3; Idaho Code 32-209; Ind. Code 31-11-1-1; Iowa Code 595.20; Kan. Stat. Ann. 23-101; Ky. Rev. Stat. Ann. 402.040; La. Civ. Code Ann. Art. 3520; Md. Code, Family Law, 2-201; Me. Rev. Stat. Ann. Tit. 19-a, 701; Mich. Comp. Laws Ann. 551.1, .271; Miss. Code Ann. 93-1-1; Mo. Rev. Stat. 451.022; Mont. Code Ann. 40-1-401; Neb. Const. Art. I, 29; Nev. Const. Art. I, 21; 2004 New Hampshire Laws Ch. 100 (S.B. 427); N.C. Gen. Stat. 51-1.2; N.D. St. 14-03-08; Ohio Rev. Code 3101.01; Okla. Stat. Ann. Tit. 43, 3.1; 23 Pa. Cons. Stat. Ann. 1704; S.C. Code Ann. 20-1-15; Tenn. Code Ann. 36-3-113; Tex. Fam. Code Ann. 6.204; Utah Code Ann. 30-1-4; Va. Code Ann. 20-45.2; Wash. Rev. Code Ann. 26.04.020; W. Va. Code Ann. 48-2-603.]
However, last year the Supreme Court in Lawrence v. Texas 4
[Footnote] struck down a state law criminalizing only same-sex sodomy, holding such a law violates the Due Process Clause. In Lawrence, the Court held that homosexuals have the right to `seek autonomy' 5
[Footnote] in their relationships and cited `personal decisions relating to marriage' 6
[Footnote] as an important area of personal autonomy. The Court also held that `the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting that practice.' 7
[Footnote] The logic of Lawrence suggests sexual autonomy may eventually be treated by the courts as akin to the right to have an abortion. Justice Kennedy, in his opinion for the Court, stated that `our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,' and that the Constitution demands respect for `the autonomy of the person in making these choices.' 8
[Footnote] The Court then quoted its abortion decision in Planned Parenthood v. Casey, stating that `[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.' 9
[Footnote]
[Footnote 4: 123 S.Ct. 2472 (2003).]
[Footnote 5: Id. at 2482.]
[Footnote 6: Id. at 2481.]
[Footnote 7: Id. at 2483 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (Stevens, J., dissenting)).]
[Footnote 8: Id. at 2481.]
[Footnote 9: Ibid.]
Justice Scalia, in his dissent in Lawrence, pointed out that `[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity' are all `called into question by [the Court's Lawrence] decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding . . . Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned . . . This case does not involve the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court . . .' 10
[Footnote]
[Footnote 10: Id. at 2490, 2498 (Scalia, J., dissenting) (emphasis added).]
The Lawrence decision points ominously to a day when the Supreme Court may strike down as unconstitutional DOMA's provision protecting states from having to recognize same-sex marriage licenses granted out-of-state on the grounds that such a provision violates either the Due Process Clause, the Equal Protection Clause, the Full Faith and Credit Clause, or some other constitutional provision.
To protect state laws that reject the recognition of same-sex marriage licenses granted in other states from the threats posed by Federal court decisions, Congress must exercise its constitutional authority to limit the jurisdiction of the Federal courts to ensure that the states, and not unelected Federal judges, have the final say on whether they must accept same-sex marriage licenses issued in other states. Congress must preclude Federal courts from striking down the shield Congress gave the states to use in rejecting same-sex marriage licenses granted in other states before Federal courts strike down that protection and set adverse judicial precedents that have effects across multiple states and cannot be reversed.
AMERICA'S GREATEST LEADERS HAVE LONG BEEN CONCERNED ABOUT LIMITING FEDERAL JUDGES' ABUSE OF THEIR AUTHORITY
Deep concern that Federal judges might abuse their power has long been noted by America's most gifted observers, including Thomas Jefferson and Abraham Lincoln.
Thomas Jefferson lamented that `the germ of dissolution of our Federal Government is in the constitution of the Federal judiciary; . . . working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped . . .' 11
[Footnote] In Jefferson's view, leaving the protection of individuals' rights to Federal judges employed for life was a serious error. Responding to the argument that Federal judges are the final interpreters of the Constitution, Jefferson wrote:
[Footnote 11: XV Thomas Jefferson, Writings of Thomas Jefferson, at 331-32 (Albert E. Bergh, ed. 1903) (letter from Thomas Jefferson to Charles Hammond (Aug. 18, 1821)).]
- You seem . . . to consider the [federal] judges as the ultimate arbiters of all constitutional questions, a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps . . . [T]heir power [is] the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party its members would become despots. 12
[Footnote]
[Footnote 12: XV The Writings of Thomas Jefferson 277-78 (Andrew A. Lipscomb and Albert Bergh, eds. 1904) (letter from Thomas Jefferson to William C. Jarvis (September 28, 1820)) (emphasis added).]
Jefferson strongly denounced the notion that the Federal judiciary should always have the final say on constitutional issues:
- If [such] opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation . . . The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. 13
[Footnote]
[Footnote 13: XV The Writings of Thomas Jefferson (Albert Bergh, ed. 1903) at 213 (letter from Thomas Jefferson to Judge Spencer Roane (September 6, 1819)).]
Abraham Lincoln said in his first inaugural address in 1861, `The candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court . . . the people will have ceased to be their own rulers having, to that extent, practically resigned their government into the hands of that eminent tribunal.' 14
[Footnote]
[Footnote 14: Abraham Lincoln's First Inaugural Address (March 4, 1861) in 4 The Collected Works of Abraham Lincoln 268 (Roy P. Basler, ed. 1953).]
CONGRESS HAS THE CLEAR AUTHORITY TO PASS H.R. 3313
A remedy to abuses by Federal judges has long been understood to lie, among other places, in Congress's authority to limit Federal court jurisdiction. As eminent Federal jurisdiction scholar Herbert Wechsler has stated, `Congress has the power by enactment of a statute to strike at what it deems judicial excess by delimitations of the jurisdiction of the lower courts and of the Supreme Court's appellate jurisdiction . . . [E]ven a pending case may be excepted from appellate jurisdiction.' 15
[Footnote] Indeed, the Supreme Court has upheld a statute removing jurisdiction from it in a pending case. 16
[Footnote]
[Footnote 15: Herbert Wechsler, `The Courts and the Constitution,' 65 Colum. L. Rev. 1001, 1005 (1965).]
[Footnote 16: See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868).]
Regarding the Federal courts below the Supreme Court, Article III, Section 1, clause 1 of the Constitution provides 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.' 17
[Footnote]
[Footnote 17: This provision of the Constitution makes clear that the Constitution itself vests judicial power in the manner prescribed in the Constitution, not that the Constitution mandates Congress to vest complete jurisdiction in the Federal courts. The Constitution itself `vests' in the Supreme Court only its limited, original jurisdiction `[i]n all cases affecting Ambassadors, other public Ministers and consuls, and those in which a State shall be Party . . .' U.S. Constitution, Article III, Section 2, clause 2. The word `shall' in this provision is not addressed to Congress, just as the words `shall' in the constitutional clauses vesting the legislative and executive authorities are not addressed to Congress. See U.S. Constitution, Article I , Section 1 (`All legislative Powers herein granted shall be vested in a Congress of the United States . . .'); Article II, Section 1 (`The executive Power shall be vested in a President of the United States of America.'). Similarly, where the Constitution provides that `The judicial power shall extend' to certain cases, it can only mean that such power shall extend to such cases insofar as either the Constitution vests original jurisdiction in the Supreme Court or as the Constitution vests power in Congress to create lower Federal courts and Congress has in fact exercised that power by statute. See also U.S. Const. Art. I, Sec. 8, clause 9 (`The Congress shall have Power . . . To constitute Tribunals inferior to the supreme Court.'). See also Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System (4th ed. 1996) at 348 (`Although Article III states that `the judicial Power of the United States shall be vested' (emphasis added), Congress possesses significant powers to apportion jurisdiction among state and Federal courts and, in doing so, to define and limit the jurisdiction of particular courts.').]
Regarding the Supreme Court, the Constitution provides that only two types of cases are within the original jurisdiction of the Supreme Court. 18
[Footnote] Article III, Section 2, clause 2 provides that `[i]n all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases . . . the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.' 19
[Footnote]
[Footnote 18: The Constitution does not grant the Supreme Court exclusive original jurisdiction. See California v. Arizona, 440 U.S. 59, 65 (1979); Illinois v. City of Milwaukee, 406 U.S. 91, 93 (1972); Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383 (1930).]
[Footnote 19: Article III, Section 2, clause 2's reference to cases in which `a State shall be Party' does not include suits by citizens against states. See United States v. Texas, 143 U.S. 621, 643-44 (1892) (`The words in the constitution, `in all cases . . . in which a state shall be party, the supreme court shall have original jurisdiction' . . . do not refer to suits brought against a state by its own citizens or by citizens of other states, or by citizens or subjects of foreign states, even where such suits arise under the constitution, laws, and treaties of the United States, because the judicial power of the United States does not extend to suits of individuals against states.') (emphasis added). The Eleventh Amendment provides that `The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state.' U.S. Const. Amend. XI.]
Consequently, the Constitution provides that the lower Federal courts are entirely creatures of Congress, as is the appellate jurisdiction of the Supreme Court, excluding only `cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.' 20
[Footnote]
[Footnote 20: By statute, the original and exclusive jurisdiction of the Supreme Court is confined to `all controversies between two or more States.' 28 U.S.C. Sec. 1251 (`(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States. (b) The Supreme Court shall have original but not exclusive jurisdiction of: (1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; (2) All controversies between the United States and a State; (3) All actions or proceedings by a State against the citizens of another State or against aliens.').]
The Founders of our Nation carefully crafted a republic in the Constitution. They articulated their defense of that document to the voters in the ratifying states in a series of newspaper articles that became known as the Federalist Papers.
In Federalist No. 80, Alexander Hamilton made clear the broad nature of Congress's authority to amend Federal court jurisdiction to remedy perceived abuse. He wrote:
- From this review of the particular powers of the Federal judiciary, as marked out in the Constitution, it appears that they are all conformable to the principles which ought to have governed the structure of that department, and which were necessary to the perfection of the system. If some partial inconveniences should appear to be connected with the incorporation of any of them into the plan, it ought to be recollected that the national legislature will have ample authority to make such EXCEPTIONS, and to prescribe such regulations as will be calculated to obviate or remove these inconveniences. 21
[Footnote]
[Footnote 21: Federalist No. 80 (Hamilton) at 481 (Clinton Rossiter ed., 1961). Hamilton elaborated further in Federalist No. 81, stating that `We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes [cases affecting ambassadors, ministers, and consuls, and cases in which a State is a party], and those of a nature rarely to occur. In all other cases of Federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, `with such EXCEPTIONS and under such REGULATIONS as the Congress shall make.' Federalist No. 81 (Hamilton) at 488 (Clinton Rossiter ed., 1961).]
Alexander Hamilton also wrote in Federalist No. 81 that `To avoid all inconveniencies, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction [that] shall be subject to such EXCEPTIONS and regulations as the national legislature may prescribe. This will enable the government to modify it in such a manner as will best answer the ends of public justice and security.' 22
[Footnote]
[Footnote 22: Federalist No. 81 (Hamilton) at 490 (Clinton Rossiter ed., 1961).]
Roger Sherman, whom eminent historian Clinton Rossiter considered one of the most influential members of the Constitutional Convention, 23
[Footnote] also wrote that:
[Footnote 23: See Clinton Rossiter, 1787: The Grand Convention, chapter 10 (1966).]
- It was thought necessary in order to carry into effect the laws of the Union, to promote justice, and preserve harmony among the states, to extend the judicial powers of the United States to the enumerated cases, under such regulations and with such exceptions as shall be provided for by law, which will doubtless reduce them to cases of such magnitude and importance as cannot safely be trusted to the final decision of the courts of particular states . . . 24
[Footnote]
[Footnote 24: Roger Sherman, Observations on the New Federal Constitution (A Citizen of New Haven, II) (December 25, 1788) (emphasis added), reprinted in Essays on the Constitution of the United States, at 240-41 (P. Ford, ed. 1892).]
FROM THE FIRST JUDICIARY ACT OF 1789 TO THE PRESENT, CONGRESS'S USE OF ITS AUTHORITY TO LIMIT FEDERAL COURT JURISDICTION HAS BEEN CONSISTENT AND BIPARTISAN
Congress has always made clear that it can limit the jurisdiction of the Federal courts, starting with the very first Judiciary Act of 1789. 25
[Footnote] As has been observed by the authors of the leading treatise on Federal court jurisdiction, `the first Judiciary Act is widely viewed as an indicator of the original understanding of Article III and, in particular, of Congress's constitutional obligations concerning the vesting of Federal jurisdiction.' 26
[Footnote]
[Footnote 25: 1 Stat. 85.]
[Footnote 26: Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System (4th ed. 1996) at 28.]
The first Congress made clear that Federal court jurisdiction over constitutional claims was not unlimited. As the Congressional Research Service has written:
- There is significant historical precedent . . . for the proposition that there is no requirement that all jurisdiction that could be vested in the Federal courts should be so vested. For instance, the First Judiciary Act implemented under the Constitution, the Judiciary Act of 1789, is considered to be an indicator of the original understanding of the Article III powers. That Act, however, falls short of having implemented all of the `judicial powers' which were specified under Article III. For instance, the Act did not provide jurisdiction for the inferior Federal courts to consider cases arising under Federal law or the Constitution. Although the Supreme Court's appellate jurisdiction did extend to such cases when they originated in state courts, its review was limited to where a claimed statutory or constitutional right had been denied by the court below. 27
[Footnote]
[Footnote 27: Kenneth Thomas, Congressional Research Service, CRS Report for Congress, `Limiting Court Jurisdiction Over Federal Constitutional Issues: `Court-Stripping' (updated May 19, 2004) at 7.]
The Judiciary Act of 1789 28
[Footnote] provided that the Supreme Court, regarding constitutional challenges to Federal law, could review only those final decisions of the state courts that held `against [the] validity' of a Federal statute or treaty. 29
[Footnote] Consequently, under the Judiciary Act of 1789, if the highest state court held a Federal law constitutional, no appeal was allowed to any Federal court, including the Supreme Court. The Supreme Court dismissed a case early in its history under such provision. 30
[Footnote] (The Judiciary Act of 1789 did not provide jurisdiction to the lower Federal courts to consider cases arising under Federal law or the Constitution.) 31
[Footnote] As one commentator has written, `Under the Judiciary Act of 1789, cases could arise that clearly fall within the judicial power of the United States but that were excluded from the combined appellate and original jurisdiction of the Federal courts,' including cases in which a state court erroneously voided a state statute for violating the Federal constitution. 32
[Footnote] In sum, `the first Congress's allocation of jurisdiction in the Judiciary Act is inconsistent with the thesis that the Constitution requires the entire judicial power of the United States to be vested in the aggregate in the Supreme Court and lower Federal courts.' 33
[Footnote]
[Footnote 28: 1 Stat. 85.]
[Footnote 29: See Martin v. Hunter's Lessee, 14 U.S. 304, 352 (1816).]
[Footnote 30: See Gordon v. Caldcleugh, 7 U.S. 268 (1806).]
[Footnote 31: See Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System (4th ed. 1996) at 29 (`[T]he 1789 Act . . . made no use of the grant of judicial power over cases arising under the Constitution or laws of the United States . . . In the category of cases arising under Federal law, Congress provided no general Federal question jurisdiction in the lower Federal courts. Nor, under section 25, did the Supreme Court's appellate jurisdiction extend to cases originating in the state courts in which the Federal claim was upheld.') (emphasis in original).]
[Footnote 32: William R. Casto, `The First Congress's Understanding of Its Authority Over the Federal Courts' Jurisdiction,' 26 B.C.L. Rev. 1101, 1118 (1985).]
[Footnote 33: Id. at 1120 (emphasis added).]
In the first Congress, fifty-four members had been delegates to the Constitutional Convention or their state ratification conventions. 34
[Footnote] That same Congress overwhelmingly voted to place significant restrictions on Federal court jurisdiction that prevented many constitutional and other claims from ever being heard in a Federal court. James Madison, for example, spoke in favor of the Judiciary Act of 1789 during House debate on the legislation, 35
[Footnote] and at the conclusion of the debate he gave the legislation his endorsement. 36
[Footnote] Although there is no rollcall vote on passage of the Judiciary Act of 1789 in the House recorded in the Congressional Record, 37
[Footnote] the Judiciary Act of 1789 passed the Senate by a vote of 14-6, with eight of the ten former delegates to the Constitutional Convention voting for it. 38
[Footnote]
[Footnote 34: Encyclopedia of American History 145 (R. Morris 6th ed. 1982).]
[Footnote 35: See 1 Annals of Congress 812-13 (J. Gales ed. 1789).]
[Footnote 36: See Gazette of the United States (September 19, 1789) at 3, col. 2.]
[Footnote 37: See I Debates and Proceedings in the Congress of the United States at 928-29 (Thursday, September 17, 1789) (`The bill for establishing the Judicial Courts of the United States was read the third time and passed.').]
[Footnote 38: See I Debates and Proceedings in the Congress of the United States at 52 (Friday, July 17, 1789) (Bassett, Ellsworth, Few, Johnson, Morris, Paterson, Read, and Strong voting for, Butler and Langdon voting against). While one cannot know from such votes whether those voting against it did so because they believed it was unconstitutional, surely no one who voted for it did so believing it was unconstitutional.]
Shortly after the Judiciary Act of 1789 became law, Congress asked Edmund Randolph, the first Attorney General of the United States, to submit a report and recommendation on `matters relative to the administration of justice under the authority of the United States.' 39
[Footnote] In that report, Attorney General Randolph recommended that the Judiciary Act of 1789 be amended such that even more cases within the judicial power of the United States be prohibited from being filed in Federal court and from being appealed to a Federal court, citing the broad authority the Constitution granted Congress to limit Federal court jurisdiction. 40
[Footnote] Indeed, as a leading treatise has pointed out, `Beginning with the first Judiciary Act in 1789, Congress has never vested the Federal courts with the entire `judicial Power' that would be permitted by Article III.' 41
[Footnote]
[Footnote 39: 2 Annals of Congress 1719 (1790).]
[Footnote 40: See William R. Casto, `The First Congress's Understanding of Its Authority Over the Federal Courts' Jurisdiction,' 26 B.C.L. Rev. 1101, 1122 (1985).]
[Footnote 41: Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System (4th ed. 1996) at 349. Such less-than-full vesting includes statutes that preclude Federal review of diversity cases in which the amounts in controversy are below statutorily defined minimums. Id. Further, the law has generally developed in a variety of additional ways that make clear there are many types of cases in which not only are Federal courts precluded from conducting constitutional review, but all constitutional review is precluded. For example, the Supreme Court has found constitutional claims to be beyond judicial review because they involve `political questions.' See Coleman v. Miller, 307 U.S. 433, 443-46 (1939); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 79-80 (1930). And the doctrine of sovereign immunity provides that additional constitutional claims can go unheard. See Black's Law Dictionary (8th ed. 2004) (`A government's immunity from being sued in its own courts without its consent').]
On both sides of the political spectrum, calls have been made to limit the jurisdiction of Federal courts to avoid abuses. Senate Minority Leader Daschle has supported provisions that would deny all Federal courts jurisdiction over the procedures governing timber projects in order to expedite forest clearing and save forests from destruction. 42
[Footnote] Those provisions became part of Public Law 107-206. 43
[Footnote] If Congress can deny all Federal courts the authority to hear a class of cases to protect trees, certainly it can do so to protect a state's marriage policy. 44
[Footnote]
[Footnote 42: See Audrey Hudson, `Daschle Seeks to Exempt His State; Wants Logging to Prevent Fires,' The Washington Times (July 24, 2002) at A1 (`As we have seen in the last several weeks, the fire danger in the Black Hills is high and we need to get crews on the ground as soon as possible to reduce this risk and protect property and lives,' Mr. Daschle said in a statement late Monday night after a House-Senate conference committee agreed on the language . . . The provision says that `due to extraordinary circumstances,' timber activities will be exempt from the National Forest Management Act and National Environmental Policy Act, is not subject to notice, comment or appeal requirements under the Appeals Reform Act, and is not subject to judicial review by any U.S. court.'); Michelle Munn, `Plan to Curb Forest Fires Wins Support,' The Los Angeles Times (August 2, 2002) at A16 (`Daschle's amendment authorizes a forest management program in Black Hills National Forest without resort to a typically lengthy judicial review and appeals process.').]
[Footnote 43: See Pub. L. No. 107-206, Sec. 706(j) (`Any action authorized by this section shall not be subject to judicial review by any court of the United States.'). This provision was addressed by the Tenth Circuit Court of Appeals in Biodiversity Associates v. Cables, 357 F.3d 1152 (10th Cir. 2004), but only to determine whether that provision conflicted with a settlement agreement between the Clinton Administration and plaintiffs in the case under which it agreed not to allow any tree cutting in the Beaver Park Roadless Area. Id. at 1158, 1160 (`In the waning days of the Clinton Administration, in September of 2000, the Forest Service signed a settlement agreement with the plaintiff groups, under which it agreed not to allow any tree cutting in the Beaver Park Roadless Area, at least until the Service approved a new land and resource management plan remedying the defects of the 1997 plan . . . The question before us is simply whether the settlement agreement has continuing validity in the face of Congress's intervening act.').]
[Footnote 44: Congress has often acted to preclude judicial review in Federal courts in selected cases. For example, the Terrorism Risk Insurance Act (P.L. 107-297) precludes judicial review of `certifications' by the Secretary of the Treasury that terrorist events have occurred, and the Small Business Liability Relief and Brownfields Revitalization Act (P.L. 107-118) precludes judicial review of hazardous waste cleanup programs.]
Democratic Senator Robert Byrd also introduced an amendment, Amendment SU 70, to S. 450 during the 96th Congress. The amendment, which was adopted by a Senate controlled by Democrats with large bipartisan support, 45
[Footnote] provided that neither the lower Federal courts nor the Supreme Court would have jurisdiction to review any case arising out of state laws relating to voluntary prayers in public schools and public buildings.
[Footnote 45: See Congressional Quarterly, Congressional rollcall 1979, at 10-S (`R 25-12; D 26-28 ').]
Further, conservative commentator William F. Buckley has advocated that `[a] means of devolving popular authority, to be exercised by individual states, could be obtained by removing jurisdiction from the Supreme Court in matters having to do with marriage.' 46
[Footnote]
[Footnote 46: William F. Buckley, `Alternatives on Marriage,' The Washington Times (March 2, 2004).]
And there are currently 224 bipartisan co-sponsors of H.R. 2028, the `Pledge Protection Act of 2003,' which would provide that `No court established by Act of Congress shall have jurisdiction to hear or determine any claim that the recitation of the Pledge of Allegiance . . . violates the first article of amendment to the Constitution of the United States.'
SUPREME COURT PRECEDENTS ARE CONSISTENT WITH CONGRESS'S AUTHORITY TO LIMIT FEDERAL COURT JURISDICTION
Supreme Court precedents upholding a variety of statutes limiting Federal court jurisdiction make clear that Congress has the authority to remove jurisdiction over legal issues from Federal courts including the Supreme Court.
In Wiscart v. D'Auchy, 47
[Footnote] Chief Justice Ellsworth, who has been a delegate to the Constitutional Convention, upheld a denial of Supreme Court jurisdiction, stating broadly that the Supreme Court's
[Footnote 47: 3 U.S. (3 Dall.) 321 (1796).]
- appellate jurisdiction is, likewise, qualified; inasmuch as it is given `with such exceptions, and under such regulations, as the Congress shall make.' Here then, is the ground, and the only ground, on which we can sustain an appeal. If Congress has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it. The question, therefore, on the constitutional point of an appellate jurisdiction, is simply, whether Congress has established any rule for regulating its exercise? 48
[Footnote]
[Footnote 48: Id. at 328.]
In Turner v. Bank of North American, 49
[Footnote] the Supreme Court upheld the provision of the Judiciary Act 50
[Footnote] which provided that no district or circuit court `shall have cognisance of any suit to recover the contents of any promissory note, or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court, to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange.' As counsel pointed out, Congress had passed the statute to prevent contracts between citizens of the same state from, through collusion, being made Federal issues under the Federal courts' diversity jurisdiction simply because one party assigned the benefits of a promissory note to a citizen of another state, or to an alien. 51
[Footnote] Chief Justice Ellsworth, during oral argument, asked the counsel asserting jurisdiction incredulously, `How far is it meant to carry the argument? Will it be affirmed, that in every case, to which the judicial power of the United States extends, the Federal courts may exercise a jurisdiction, without the intervention of the legislature, to distribute, and regulate, the power?' 52
[Footnote] Justice Chase agreed, stating:
[Footnote 49: 4 U.S. 8 (1799).]
[Footnote 50: 1 U.S. Stat. 79.]
[Footnote 51: 4 U.S. at 8 (`Congress knew, that the English courts have amplified their jurisdiction, through the medium of legal fictions; and it was readily foreseen, that by the means of a colorable assignment to an alien, or to the citizen of another state, every controversy arising upon negotiable paper might be drawn into the Federal courts.') (citing argument of counsel). See also 10 Annals of Congress, at 897-99 (1801) (discussing purpose of assignee provision).]
[Footnote 52: Id. at 10, n.a. (citing statement of Chief Justice Ellsworth).]
- The notion has frequently been entertained, that the Federal courts derive their judicial power immediately from the constitution; but the political truth is that the disposal of the judicial power (except in a few specified instances) belongs to congress. If congress has given the power to this court, we possess it, not otherwise: and if congress has not given the power to us, or to any other court, it still remains at the legislative disposal. Besides, congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of the Federal courts, to every subject, in every form, which the constitution might warrant. 53
[Footnote]
[Footnote 53: Id. at 9, n.a. (citing statement of Justice Case).]
In Cary v. Curtis, 54
[Footnote] the Supreme Court upheld the application of a statute that placed jurisdiction for all claims of illegally charged customs duties with the Secretary of the Treasury. The Court stated that, under the statute, `it is the Secretary of the Treasury alone in whom the rights of the government and of the claimant are to be tested.' 55
[Footnote] In a broad decision, the Court upheld a Federal statute that removed jurisdiction over all such claims from both the state and Federal courts and dismissed the case for lack of jurisdiction:
[Footnote 54: 44 U.S. 236 (1845).]
[Footnote 55: Id. at 241 (`To permit the receipts at the customs to depend on constructions as numerous as are the agents employed, as various as might be the designs of those who are interested; or to require that those receipts shall await a settlement of every dispute or objection that might spring from so many conflicting views, would be greatly to disturb, if not to prevent, the uniformity prescribed by the Constitution, and by the same means to withhold from the government the means of fulfilling its important engagements . . . We have no doubts of the objects or the import of that act; we cannot doubt that it . . . has made the head of the Treasury Department the tribunal for the examination of claims for duties said to have been improperly paid.').]
- It is contended, however, that the language and the purposes of Congress, if really what we hold them to be declared in the statute of 1839, cannot be sustained, because they would be repugnant to the Constitution, inasmuch as they would debar the citizen of his right to resort to the courts of justice . . . [I]n the doctrines so often ruled in this court that the judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good. To deny this position would be to elevate the judicial over the legislative branch of the government, and to give to the former powers limited by its own discretion merely. It follows, then, that the courts created by statute must look to the statute as the warrant for their authority, certainly they cannot go beyond the statute, and assert an authority with which they may not be invested by it, or which may be clearly denied to them. This argument is in no wise impaired by admitting that the judicial power shall extend to all cases arising under the Constitution and laws of the United States. Perfectly consistent with such an admission is the truth, that the organization of the judicial power, the definition and distribution of the subjects of jurisdiction in the Federal tribunals, and the modes of their action and authority, have been, and of right must be, the work of the legislature. The existence of the Judicial Act itself, with its several supplements, furnishes proof unanswerable on this point. The courts of the United States are all limited in their nature and constitution, and have not the powers inherent in courts existing by prescription or by the common law. 56
[Footnote]
[Footnote 56: Id. at 244-46 (emphasis added).]
In Barry v. Mercein, 57
[Footnote] the Supreme Court stated that `[b]y the Constitution of the United States, the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress, nor can it, when conferred be exercised in any other form, or by any other mode of proceeding than that which the law prescribes.' 58
[Footnote]
[Footnote 57: 46 U.S. (5 How.) 103 (1847).]
[Footnote 58: Id. at 119.]
In Sheldon v. Sill, 59
[Footnote] the Supreme Court stated:
[Footnote 59: 29 U.S. 441 (1850).]
- It must be admitted, that if the Constitution had ordained and established the inferior courts, and distributed to them their respective powers, they could not be restricted or divested by Congress. But as it has made no such distribution, one of two consequences must result--either that each inferior court created by Congress must exercise all the judicial powers not given to the Supreme Court, or that Congress, having the power to establish the courts, must define their respective jurisdictions. The first of these inferences has never been asserted, and could not be defended with any show of reason, and if not, the latter would seem to follow as a necessary consequence. And it would seem to follow, also, that, having a right to prescribe, Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies. Courts created by statute can have no jurisdiction but such as the statute confers. No one of them can assert a just claim to jurisdiction exclusively conferred on another, or withheld from all . . . Such has been the doctrine held by this court since its first establishment. To enumerate all the cases in which it has been either directly advanced or tacitly assumed would be tedious and unnecessary. 60
[Footnote]
[Footnote 60: Id. at 448-49.]
In Mayor v. Cooper, 61
[Footnote] the Supreme Court held that:
[Footnote 61: 73 U.S. (6 Wall.) 247 (1868).]
- How jurisdiction shall be acquired by the inferior courts, whether it shall be original or appellate, or original in part and appellate in part, and the manner of procedure in its exercise after it has been acquired, are not prescribed. The Constitution is silent upon those subjects. They are remitted without check or limitation to the wisdom of the legislature . . . As regards all courts of the United States inferior to this tribunal, two things are necessary to create jurisdiction, whether original or appellate. The Constitution must have given to the court the capacity to take it, and an act of Congress must have supplied it. Their concurrence is necessary to vest it . . . It is the right and the duty of the national government to have its Constitution and laws interpreted and applied by its own judicial tribunals. In cases arising under them, properly brought before it, this court is the final arbiter. 62
[Footnote]
[Footnote 62: Id. at 251-52.]
In United States v. Klein, 63
[Footnote] the Supreme Court struck down a statute that purported to deny the lower U.S. Court of Claims and the Supreme Court, on appeal, the authority to hear claims for property brought by those who were pardoned by President Lincoln following the Civil War. The Supreme Court held the statute unconstitutional for two reasons. First, because the statute made having received a pardon proof of disloyalty that effectively denied the right to Federal judicial review, it found that in forbidding the Court `to give the effect to evidence which, in its own judgment, such evidence should have' and directing the court `to give it an affect precisely contrary,' Congress had `inadvertently passed the limit which separates the legislative from the judicial power.' 64
[Footnote] Second, the statute unconstitutionally `impair[ed] the effect of a pardon, and thus infring[ed] the constitutional power of the Executive.' 65
[Footnote]
[Footnote 63: 80 U.S. 128 (1871).]
[Footnote 64: Id. at 147.]
[Footnote 65: Id.]
In the opinion, however, the Supreme Court made clear that `[i]t seems to us that this is not an exercise of the acknowledged power of Congress to make exceptions and prescribe regulations to the appellate power.' 66
[Footnote] Further, the Court stated that `If [the challenged statute] simply denied the right of appeal in a particular class of cases, there could be no doubt that it must be regarded as an exercise of the power of Congress to make `such exceptions from the appellate jurisdiction' as should seem to it expedient. But the language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. Its great and controlling purpose is to deny to pardons granted by the President the effect which this court had adjudged them to have.' 67
[Footnote] In other words, the denial of Federal court jurisdiction would have been upheld if it had not effectively acted to limit the President's constitutional pardon power. H.R. 3313 would not conflict with any other constitutional authority granted by the Constitution.
[Footnote 66: Id. at 146.]
[Footnote 67: Id. at 145 (emphasis added).]
In The Francis Wright, 68
[Footnote] the Supreme Court stated:
[Footnote 68: 105 U.S. 381 (1881).]
- [W]hile the appellate power of this court under the Constitution extends to all cases within the judicial power of the United States, actual jurisdiction under the power is confined within such limits as Congress sees fit to prescribe . . . What those powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control. Authority to limit the jurisdiction necessarily carries with it authority to limit the use of the jurisdiction. Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to re-examination and review, while others are not. 69
[Footnote]
[Footnote 69: The Francis Wright, 105 U.S. 381, 385-86 (1881).]
In Stevenson v. Fain, 70
[Footnote] the Supreme Court stated that `The Supreme Court alone possesses [original] jurisdiction derived immediately from the Constitution, and of which the legislative power cannot deprive it, but the jurisdiction of the circuit courts depends upon some act of Congress.' 71
[Footnote]
[Footnote 70: 195 U.S. 165 (1904).]
[Footnote 71: Id. at 167 (quotations and citations omitted).]
In Kline v. Burke Construction Co., 72
[Footnote] the Supreme Court states that:
[Footnote 72: 260 U.S. 226 (1922).]
- Only the [original] jurisdiction of the Supreme Court is derived directly from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution . . . The Constitution simply gives to the inferior courts the capacity to take jurisdiction in the enumerated cases, but it requires an act of Congress to confer it. And the jurisdiction having been conferred may, at the will of Congress, be taken away in whole or in part . . . A right which thus comes into existence only by virtue of an act of Congress, and which may be withdrawn by an act of Congress after its exercise has begun, cannot well be described as a constitutional right. 73
[Footnote]
[Footnote 73: Id. at 234.]
In Lauf v. E.G. Shinner & Co., 74
[Footnote] the Supreme Court again upheld a statute that placed limits on the jurisdiction of the lower Federal courts, stating `the power of the court to grant the relief prayed depends upon the jurisdiction conferred upon it by the statutes of the United States . . . Section 7 [of the Act] declares that `no court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute, as herein defined,' [with certain exceptions] . . . There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States.'
[Footnote 74: 303 U.S. 323 (1938).]
In Lockerty v. Phillips, 75
[Footnote] the Supreme Court similarly held, in upholding a statute limiting lower courts' jurisdiction over challenges to price controls, that
[Footnote 75: 319 U.S. 182 (1943).]
- [b]y this statute Congress has seen fit to confer on the Emergency Court (and on the Supreme Court upon review of decisions of the Emergency Court) equity jurisdiction to restrain the enforcement of price orders under the Emergency Price Control Act. At the same time it has withdrawn that jurisdiction from every other Federal and state court. There is nothing in the Constitution which requires Congress to confer equity jurisdiction on any particular inferior Federal court. All Federal courts, other than the Supreme Court, derive their jurisdiction wholly from the exercise of the authority to `ordain and establish' inferior courts, conferred on Congress by Article III, Sec. 1, of the Constitution. Article III left Congress free to establish inferior Federal courts or not as it thought appropriate. It could have declined to create any such courts, leaving suitors to the remedies afforded by state courts, with such appellate review by this Court as Congress might prescribe. The Congressional power to ordain and establish inferior courts includes the power of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good. In the light of the explicit language of the Constitution and our decisions, it is plain that Congress has power to provide that the equity jurisdiction to restrain enforcement of the Act, or of regulations promulgated under it, be restricted to the Emergency Court, and, upon review of its decisions, to this Court. 76
[Footnote]
[Footnote 76: Id. at 187-88 (quotations and citations omitted) (emphasis added).]
While some have argued that Federal court jurisdiction is necessary to ensure a Federal court exists to decide at least constitutional questions, as eminent Federal jurisdiction scholar Martin Redish has observed, `there is no logical way to limit the need for an article III court to police the states to cases involving assertions of constitutional rights. If the state courts are not to be allowed to undermine the establishment of national supremacy, surely these courts must also be policed on their interpretation and enforcement of any Federal law. The supremacy clause, it should be recalled, is not limited in its dictates to matters of constitutional law, much less of constitutional right.' 77
[Footnote]
[Footnote 77: Martin H. Redish, `Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager,' 77 N.W.U.L.Rev. 143, 148 (1982).]
Indeed, the Supreme Court, in a decision this year, reaffirmed that `[t]he whole subject of domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.' 78
[Footnote] The Supreme Court has also stated that `domestic relations are preeminently matters of state law,' 79
[Footnote] and that `[f]amily relations are a traditional area of state concern.' 80
[Footnote]
[Footnote 78: Elk Grove Unified School District v. Newdow, 124 S.Ct. 2301, 2309 (2004) (citing and quoting In re Burrus, 136 U.S. 586, 593-94 (1890)).]
[Footnote 79: Mansell v. Mansell, 490 U.S. 581, 587 (1989).]
[Footnote 80: Moore v. Sims, 442 U.S. 415, 435 (1979).]
Further, H.R. 3313 is entirely consistent with Marbury v. Madison. Marbury v. Madison 81
[Footnote] established the principle of judicial review and stands for the proposition that the Supreme Court has the final say on the issues it decides provided either the issues it decides are within its original jurisdiction or Congress, by statute, has granted the Supreme Court the authority to hear the issue. If a case does not fall within the jurisdiction of the Federal courts because Congress has not granted the required jurisdiction, Federal courts simply cannot hear the case.
[Footnote 81: 5 U.S. 137 (1803). In Marbury v. Madison, the Supreme Court found that under Article III of the Constitution, a party within the Supreme Court's original jurisdiction must be a State or an ambassador and that neither Marbury nor Madison was a state or an ambassador. Consequently, the Supreme Court held that the original jurisdiction of the Supreme Court is fixed by the Constitution and it dismissed the case because Congress had exceeded its constitutional authority when it granted the Supreme Court original jurisdiction to hear Marbury's case in the Judiciary Act of 1789. Id.]
The author of Marbury v. Madison was Chief Justice John Marshall, and Chief Justice Marshall himself, after he decided Marbury v. Madison, dismissed cases when the Federal courts had not been granted jurisdiction by Congress to hear them under the Judiciary Act of 1789. 82
[Footnote]
[Footnote 82: See Gordon v. Caldcleugh, 7 U.S. 268 (1806) (dismissing case for lack of jurisdiction under the Judiciary Act of 1789) (`This court has no jurisdiction, under the 25th section of the judiciary act of 1789, but in a case where a final judgment or decree has been rendered in the highest court of law or equity of a state, in which a decision in the suit could be had, where is drawn in question, the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity, &c. or where is drawn in question, the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption, specially set up or claimed by either party, under such clause of the said constitution, treaty, statute or commission. In the present case, such of the defendants as were aliens, filed a petition to remove the cause to the Federal circuit court, under the 12th section of the same act. The state court granted the prayer of the petition, and ordered the cause to be removed; the decision, therefore, was not against the privilege claimed under the statute; and, therefore, this court has no jurisdiction in the case. The writ of error must be dismissed.').]
STATE COURTS ARE NOT SECOND-CLASS COURTS, AND THEY ARE EQUALLY CAPABLE OF DECIDING FEDERAL CONSTITUTIONAL QUESTIONS
Federal legislation that precludes Federal court jurisdiction over certain constitutional claims to remedy perceived abuses by Federal judges, and to preserve for the states and their courts the authority to determine constitutional issues, rests comfortably within our constitutional system. 83
[Footnote]
[Footnote 83: As Martin Redish has observed, the Founders did not intend to guarantee a Federal judiciary to ensure uniformity of Federal policy, but rather they intended to allow Congress the option of creating and granting jurisdiction to Federal courts if Congress thought such was necessary to police actions by state courts:]
[The Founders'] fear seems to have been that, absent policing by some branch of the Federal Government, state courts might undermine Federal supremacy. Ultimately, the framers chose the judicial branch to perform this policing function. But if the policy-making branches of the Federal Government--Congress and the executive--conclude in a particular instance that there is no need to worry about state court interference, there is, by definition, no possibility of interference with Federal supremacy; the Federal Government has chosen to deem acceptable whatever constructions of Federal law the state courts develop.
The Supreme Court has clearly rejected claims that state courts are less competent to decide Federal constitutional issues than Federal courts. 84
[Footnote] Justice William Brennan wrote, in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 85
[Footnote] that `virtually all matters that might be heard in Art. III courts could also be left by Congress to state courts.' 86
[Footnote] Justice Brennan was joined in that decision by Justices Marshall, Blackmun, and Stevens.
[Footnote 84: See Stone v. Rice, 428 U.S. 465, 492 (1976) (`[W]e are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States. State courts, like Federal courts, have a constitutional obligation to safeguard personal liberties and to uphold Federal law.').]
[Footnote 85: 458 U.S. 50 (1982).]
[Footnote 86: Id. at 64 n.15.]
And the leading scholars have long noted the constitutional alternative of state court resolutions of Federal constitutional claims. As Martin Redish has observed, `The state courts have, since the nation's beginning, been deemed both fully capable of and obligated (under the supremacy clause) to enforce Federal law, including the Constitution . . . Congress has complete authority to have constitutional rights enforced exclusively in the state courts . . .' 87
[Footnote]
[Footnote 87: Martin H. Redish, `Constitutional Limitations on Congressional Power to Control Federal Jurisdiction: A Reaction to Professor Sager,' 77 N.W.U.L.Rev. 143, 155, 157 (1982) (emphasis added).]
Article VI of the Constitution states that `This Constitution . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby . . .' U.S. Constitution, Art. VI, Section 2. As Martin Redish has pointed out, `It is all but inconceivable that the framers who had vested total discretion in Congress over substantive lawmaking, with the possibility that a Congress `biased' towards the states could choose to pass no substantive Federal law at all and instead defer completely to state control, would have fretted significantly over the possibility that Congress would take the lesser step of enacting substantive Federal law but leaving to the state courts the final authority to interpret it.' 88
[Footnote]
[Footnote 88: Id. at 148.]
As leading Harvard Law School Federal jurisdiction scholar Paul Bator has written, `If the Constitution means what it says, it means that Congress can make the state courts--or, indeed, the lower Federal courts--the ultimate authority for the decision of any category of case to which the Federal judicial power extends . . . Indeed, a powerful case can be made that such a plenary power may be essential to making the institution of judicial review tolerable in a democratic society.' 89
[Footnote]
[Footnote 89: Constitutional Restraints Upon the Judiciary: Hearing Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 97th Cong. 51, 55 (1981) (statement of Paul M. Bator, Professor, Harvard Law School). See also Paul Bator, `The State Courts and Federal Constitutional Litigation,' 22 Wm. & Mary L.Rev. 605, 627 (1981) (`We must never forget that under our constitutional structure it is the state . . . courts that constitute our ultimate guarantee that a usurping legislature and executive cannot strip us of our constitutional rights.').]
And as the Congressional Research Service has concluded, `[t]o the extent that state courts provide a forum for challenges to DOMA [the Federal Defense of Marriage Act], then concerns about removal of such issues from Federal courts are diminished.' 90
[Footnote]
[Footnote 90: `Constitutional Issues Relating to H.R. 3313, the `Marriage Protection Act',' Congressional Research Service Memorandum to Subcommittee on the Constitution, House Committee on the Judiciary, from Kenneth R. Thomas, Legislative Attorney, American Law Division (March 1, 2004) at 6.]
H.R. 3313 IS A PROPER EXERCISE OF CHECKS AND BALANCES
Far from violating the separation of powers, legislation that reserves to state courts jurisdiction to hear and decide certain classes of cases is an exercise of one of the very checks and balances provided for in the Constitution.
As Lord Acton stated, `Power tends to corrupt and absolute power corrupts absolutely.' No branch of the Federal Government can be entrusted with absolute power--certainly not a handful of unelected Federal judges appointed for life. The Constitution allows the Supreme Court to exercise `judicial power,' but it does not grant the Supreme Court unchecked power to define the limits of its own power. Integral to the American constitutional system is each branch of government's responsibility to use all its powers to prevent perceived instances of overreaching by the other branches.
Congress's exercise of its authority to remove classes of cases from Federal court jurisdiction does not transfer power from the Federal judiciary to Congress. Rather, it transfers power from the Federal judiciary to the state judiciary. Congress's exercise of its authority to remove classes of cases from Federal court jurisdiction also does not give Congress the power to decide the outcome of cases: that decisional authority would rest with the state courts.
H.R. 3313 DOES NOT FAVOR OR DISFAVOR ANY PARTICULAR RESULT OR ANY GROUP OF PEOPLE
H.R. 3313 does not favor or disfavor any particular result or any group of people. H.R. 3313 is motivated by a desire to preserve for the states the authority to decide whether the shield Congress enacted to protect them from having to accept same-sex marriage licenses issued out of state will hold--not by any ill will or animus. 91
[Footnote]
[Footnote 91: See Romer v. Evans, 517 U.S. 620, 634-36 (1995) (holding state constitutional amendment unconstitutional under Federal Equal Protection Clause because `the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group' and `its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.'); Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1869) (dismissing case based on Federal statute repealing the act which originally authorized the appeal, stating `[w]e are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words. What, then, is the effect of the repealing act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle.').]
H.R. 3313 does not dictate results: it only places final authority over whether states must accept same-sex marriage licenses granted in other states in the hands of the states themselves. H.R. 3313 should be supported by any Member who supports the proposition that lifetime-appointed Federal judges must not be allowed to rewrite marriage policy for the states.
HEARINGS
The Committee's Subcommittee on the Constitution held one day of hearings on `Limiting Federal Court Jurisdiction to Protect Marriage for the States' on June 24, 2004. Testimony was received from Phyllis Schlafly, President, Eagle Forum; Martin H. Redish, Professor, Northwestern University School of Law; Michael Gerhardt, Professor, William & Mary Law School; William E. Dannemeyer, former U.S. Representative, with additional material submitted by individuals and organizations.
COMMITTEE CONSIDERATION
On July 14, 2004, the Committee met in open session and ordered favorably reported the bill H.R. 3313 with an amendment by a recorded vote of 21 to 13, a quorum being present.
VOTE OF THE COMMITTEE
In compliance with clause 3(b) of rule XIII of the Rules of the House of Representatives, the Committee notes that the following rollcall votes occurred during the Committee's consideration of H.R. 3313.
1. Ms. Baldwin offered an amendment to the amendment in the nature of a substitute to H.R. 3313 that would have allowed Federal courts to strike down on various constitutional grounds the provision of the Defense of Marriage Act that allows states to reject same-sex marriage licenses issued in other states. By a rollcall vote of 13 yeas to 20 nays, the amendment was defeated.
ROLLCALL NO. 1
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde
Mr. Coble X
Mr. Smith X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Ms. Hart X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Carter X
Mr. Feeney X
Mrs. Blackburn X
Mr. Conyers X
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee X
Ms. Waters X
Mr. Meehan
Mr. Delahunt X
Mr. Wexler
Ms. Baldwin X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Sensenbrenner, Chairman X
Total 13 20
----------------------------------------------
2. Ms. Jackson Lee offered an amendment to the amendment in the nature of a substitute to H.R. 3313 that would have expanded the jurisdiction of the Federal courts. By a rollcall vote of 11 yeas to 19 nays and 1 pass, the amendment was defeated.
ROLLCALL NO. 2
----------------------------------------------
Ayes Nays Present
----------------------------------------------
Mr. Hyde
Mr. Coble X
Mr. Smith X
Mr. Gallegly
Mr. Goodlatte X
Mr. Chabot X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Ms. Hart X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Carter X
Mr. Feeney X
Mrs. Blackburn X
Mr. Conyers
Mr. Berman X
Mr. Boucher
Mr. Nadler X
Mr. Scott X
Mr. Watt Pass
Ms. Lofgren X
Ms. Jackson Lee X
Ms. Waters X
Mr. Meehan X
Mr. Delahunt
Mr. Wexler
Ms. Baldwin X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Sensenbrenner, Chairman X
Total 11 19 1 Pass
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3. Motion to Report H.R. 3313 with an amendment in the nature of a substitute was agreed to by a rollcall vote of 21 yeas to 13 nays.
ROLLCALL NO. 3
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Ayes Nays Present
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Mr. Hyde
Mr. Coble X
Mr. Smith X
Mr. Gallegly X
Mr. Goodlatte X
Mr. Chabot X
Mr. Jenkins X
Mr. Cannon X
Mr. Bachus X
Mr. Hostettler X
Mr. Green X
Mr. Keller X
Ms. Hart X
Mr. Flake X
Mr. Pence X
Mr. Forbes X
Mr. King X
Mr. Carter X
Mr. Feeney X
Mrs. Blackburn X
Mr. Conyers X
Mr. Berman X
Mr. Boucher X
Mr. Nadler X
Mr. Scott X
Mr. Watt X
Ms. Lofgren X
Ms. Jackson Lee X
Ms. Waters X
Mr. Meehan X
Mr. Delahunt
Mr. Wexler
Ms. Baldwin X
Mr. Weiner X
Mr. Schiff X
Ms. Sanchez X
Mr. Sensenbrenner, Chairman X
Total 21 13
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COMMITTEE OVERSIGHT FINDINGS
In compliance with clause 3(c)(1) of rule XIII of the Rules of the House of Representatives, the Committee reports that the findings and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.
NEW BUDGET AUTHORITY AND TAX EXPENDITURES
Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new budgetary authority or increased tax expenditures.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
In compliance with clause 3(c)(3) of rule XIII of the Rules of the House of Representatives, the Committee sets forth, with respect to the bill, H.R. 3313, the following estimate and comparison prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974:
Hon. F. JAMES SENSENBRENNER, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 3313, the `Marriage Protection Act of 2004.'
If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Lanette J. Walker, who can be reached at 226-2860.
Sincerely,
Douglas Holtz-Eakin.
- Enclosure
- cc:
- Honorable John Conyers, Jr.
- Ranking Member
H.R. 3313--Marriage Protection Act of 2004.
H.R. 3313 would preclude all Federal courts from striking down the section of the Defense of Marriage Act that provides no State shall be required to recognize same-sex marriage licenses granted in another State unless the State allows such recognition. The bill also would preclude all Federal courts from reviewing the provisions of H.R. 3313. CBO estimates that implementing the bill would not have a significant effect on the Federal budget.
H.R. 3313 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would not affect the budgets of State, local, or tribal governments.
The CBO staff contact for this estimate is Lanette J. Walker, who may be reached at 226-2860. This estimate was approved by Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.
PERFORMANCE GOALS AND OBJECTIVES
The Committee states that pursuant to clause 3(c)(4) of rule XIII of the Rules of the House of Representatives, H.R. 3313 would preclude Federal court jurisdiction over 28 U.S.C. Sec. 1738C and over the newly created 28 U.S.C. 1632 created by H.R. 3313.
CONSTITUTIONAL AUTHORITY STATEMENT
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House of Representatives, the Committee finds the authority for this legislation in article I, section 8, clause 9; article III, section 1, clause 1; and article III, section 2, clause 2.
SECTION-BY-SECTION ANALYSIS AND DISCUSSION
The following discussion describes H.R. 3313 as reported by the Committee on the Judiciary.
Sec. 1. Short title. Section 1 provides that the legislation may be cited as the `Marriage Protection Act of 2004.'
Sec. 2. Limitation on Jurisdiction. Section 2 creates a new 28 U.S.C. Sec. 1632 that provides that no court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C of Title 28 of the United States Code, or the newly created 28 U.S.C. 1632.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
- In compliance with clause 3(e) of rule XIII of the Rules of the House of Representatives, changes in existing law made by the bill, as reported, are shown as follows (new matter is printed in italics and existing law in which no change is proposed is shown in roman):
TITLE 28, UNITED STATES CODE
* * * * * * *
PART IV--JURISDICTION AND VENUE
* * * * * * *
CHAPTER 99--GENERAL PROVISIONS
| Sec. |
| 1631. Transfer to cure want of jurisdiction. |
| 1632. Limitation on jurisdiction. |
* * * * * * *
Sec. 1632. Limitation on jurisdiction
- No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.
* * * * * * *
MARKUP TRANSCRIPT
House of Representatives,
Committee on the Judiciary,
--Washington, DC.
The Committee met, pursuant to notice, at 10:30 a.m., in Room 2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding.
Chairman SENSENBRENNER. The Committee will be in order. A working quorum is present. Pursuant to notice I now call up the bill H.R. 3313, the `Marriage Protection Act of 2003,' for purposes of markup and move its favorable recommendation to the House. Without objection, the bill will be considered as read and open for amendment at any point.
[The bill, H.R. 3313, follows:]
Chairman SENSENBRENNER. The Chair recognizes the author of the bill, the gentleman from Indiana, Mr. Hostettler, for 5 minutes to explain the bill.
Mr. HOSTETTLER. Thank you, Mr. Chairman.
Mr. Chairman, in 1996 both Chambers of the United States Congress overwhelmingly passed and the President signed into law the Defense of Marriage Act, otherwise known as DOMA. DOMA was in response to a decision by the Hawaii State Supreme Court which found that denial of marriage licenses to homosexual couples was a violation of Hawaii's Constitution.
DOMA employed the authority granted to Congress in Article IV, Section 1 of the United States Constitution, that explicit and exclusive congressional authority is spelled out thus, quote: Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State, and the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved and the effect thereof, end quote.
Since the passage of DOMA decisions in the United States Supreme Court and the Supreme Judicial Court of the State of Massachusetts have suggested that courts may be willing to call into question the constitutionality of the Federal DOMA. With that possibility looming, I introduced H.R. 3313, the Marriage Protection Act.
H.R. 3313 seeks to utilize the constitutional authority of Congress to limit the jurisdiction of the Federal Judiciary to hear cases which may arise as a result of the 1996 Defense of Marriage Act. The bill provides that, one, no Federal court will have jurisdiction to hear a case arising under DOMA's full faith and credit provision and, two, no Federal court will have appellate jurisdiction in a case arising under DOMA's definition of `marriage' and `spouse' for purposes of Federal benefits. In essence, the bill says that no Federal court will have the opportunity to suggest that DOMA's full faith and credit provision is, quote, unconstitutional, end quote.
Why may Congress do this? Simply because Article IV, Section 1 of the Constitution gives Congress explicit and exclusive authority to regulate full faith and credit relationships between the States. There is no need for the Federal courts to consider a question about Congress' authority when Congress' authority is so clearly expounded in the Constitution. But beyond that, Article I, Section 8 and Article III, Section 1 and 2 of the Constitution grant Congress explicit and exclusive authority to create the inferior Federal courts, regulate their jurisdiction and regulate the appellate jurisdiction of the Supreme Court.
With regard to the creation and regulation of, quote, tribunals inferior to the Supreme Court, end quote, known today as district courts and courts of appeals, the Constitution states in Article I Section 8, quote: The Congress shall have power to constitute tribunals inferior to the Supreme Court, end quote.
Further, Article I, Section 8 says, quote: The Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution and the Government of the United States or any department or officer thereof, end quote.
Article III, Section 1 further stipulates that, quote, The judicial power of the United States shall be vested in such inferior courts as the Congress may from time to time ordain and establish, end quote. With regard to the regulation of the United States Supreme Court, the Constitution after first delineating the full range of cases the Federal Judiciary may consider and, second, delineating that very limited number of cases that the Supreme Court will have original jurisdiction, goes on to state in Article III Section 2, quote: In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction both as to law and fact with such exceptions and other such regulations as the Congress shall make, end quote.
And so, Mr. Chairman, this Committee is considering whether Congress should make a law that is necessary and proper for carrying into execution its constitutional power to regulate the inferior Federal courts' original and appellate jurisdiction and the Supreme Court's appellate jurisdiction concerning Congress' explicit and exclusive constitutional authority to regulate full faith and credit provisions between the States.
I ask should Congress do this and not can Congress do this, advisedly. It is obvious to anyone who actually reads the Constitution that Congress can do this. In other words, the question today is should Congress exercise its constitutional authority to stop the Federal courts from striking down the Federal Defense of Marriage Act.
The result of such a decision by the Federal courts would in effect invalidate the numerous State Defense of Marriage Acts. This would mean that the citizens of States such as Michigan, California, Virginia, North Carolina, Texas and Florida, who have their own statutes to define marriage as between one man and one woman would have to recognize the marriage licenses issued to homosexual couples by other States that require that practice. I believe the people of these States, as well as the people of the State of Indiana, should be able to defend and preserve the institution of marriage and that we today in this Committee should support them in their efforts.
That is why, Mr. Chairman, I ask today that my colleagues support H.R. 3313, the Marriage Protection Act, and yield back the balance of my time.
Chairman SENSENBRENNER. The gentleman from Michigan.
Mr. CONYERS. Thank you, Mr. Chairman. I rise in some state of shock here this morning. I have heard of a lot of measures, more measures, amendments, bills, proposals, constitutional amendments than any Member on this Committee. And I would like to ask you, my friend, Chairman Sensenbrenner, what will you do with this bill proposed if it were to pass this Committee?
And I yield to the gentleman.
Chairman SENSENBRENNER. I would file a Committee report, and it would be up to the leadership to schedule it.
Mr. CONYERS. Okay. Now, I want to ask the author of this amendment, does he know of--has ever heard of or has there ever been any research brought to his attention that we would limit any application for appellate review to no review whatever? And I yield to the gentleman.
Mr. HOSTETTLER. The main body of research that I have done is to read the Constitution of the United States.
Mr. CONYERS. Well, I am glad you did that.
Mr. HOSTETTLER. Yield back.
Mr. CONYERS. Well, we have established then, my friend, two things, that, one, you could read and, two, that you have read the Constitution. But can you answer the question? Or you don't know what the question is. Okay. I am going to repeat it again. Now, look, tell me where you ever heard of no review of a matter being prevented, no review whatever in your life in American history?
I yield to the gentleman again.
Mr. HOSTETTLER. Actually, the question is false on its face in that there will be review, because in Article VI of the Constitution, the Constitution says, this Constitution and the laws of the United States shall be made pursuant thereof and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the Constitution notwithstanding. And so there is review of this question on the State court level and there has been in the past many constitutional questions on the State court level.
Mr. WEINER. Would the gentleman yield to me for a question?
Mr. CONYERS. Yes.
Mr. WEINER. Just so I understand the sponsor, do you believe that Marbury v. Madison was wrongly decided?
Mr. HOSTETTLER. Do I believe that Marbury v. Madison was wrongly decided? Which part of Marbury v. Madison?
Mr. WEINER. The part of Marbury v. Madison that settled something that was nowhere in the Constitution is what if you have three branches Government who disagree about the interpretation of the law, who breaks the tie. And Marbury v. Madison ruled, frankly I am glad they did, that the Supreme Court and the courts of the land ultimately have the say. Do you believe that was wrongly decided?
Mr. HOSTETTLER. Will the gentleman yield?
Mr. WEINER. I am curious as to the question because it would help me understand what we are getting at here.
Chairman SENSENBRENNER. The time belongs to the gentleman from Michigan.
Mr. CONYERS. And I yield.
Mr. HOSTETTLER. Actually, there are several constitutional scholars; for example, Louis Fisher from the Congressional Research Service. I have a copy of his work on Congressional checks to the Judiciary that I can provide the gentleman.
Mr. WEINER. Would the gentleman from Michigan yield?
Mr. CONYERS. Of course.
Mr. WEINER. There is only one, one constitutional scholar whose view I am interested in now, and that is yours. Do you believe that Marbury v. Madison was wrongly decided? Just so I understand where you are coming from.
Mr. HOSTETTLER. I believe that part of the case was wrongly decided.
Mr. WEINER. Judicial review. Thank you. I yield back.
Mr. PENCE. Would the gentleman from Michigan yield?
Mr. NADLER. Would the gentleman yield?
Mr. CONYERS. Yes.
Mr. NADLER. I would ask the gentleman from Indiana one question. The gentleman says that if this bill were passed that the State courts could decide, could review peoples' claims.
Mr. HOSTETTLER. Yes.
Mr. NADLER. So in other words, we would have 50 different decisions on whether a given law was constitutional and in New Jersey it would be held constitutional and in Indiana it would be held unconstitutional under what this would do? Yes or no.
Mr. HOSTETTLER. If the gentleman will yield. This allows the States to determine----
Mr. NADLER. I asked you a different question. So the result of that would be, or would it not be that you would have a patchwork quilt and you would have 50 different decisions and in some States a Federal law would be unconstitutional and in other States it would be held constitutional because there would be no way to reconcile conflicting State court decisions? Yes or no.
Mr. HOSTETTLER. No.
Mr. NADLER. Well, why not?
Mr. HOSTETTLER. Because you are suggesting that all 50 States would----
Mr. NADLER. I am suggesting nothing of the sort.
Chairman SENSENBRENNER. The time of the gentleman from Michigan has expired.
Without objection, all Members' opening statements will appear in the record at this point.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress From the State of Michigan, and Ranking Member, Committee on the Judiciary
The only reason we are debating an unconstitutional and divisive proposal is because the President is in danger of losing his job and wants to detract attention from his Iraq failure and to bolster support among right-wing conservatives.
Just last week, the death toll of U.S.-led forces in Iraq reached 1,000. The 9/11 Commission found, contrary to President Bush's claims, that there was no relationship between Saddam Hussein and Al Qaeda. No weapons of mass destruction have been found in Iraq.
What did the President do about it? He followed the advice of Paul Weyrich, a conservative organizer, who said the President had based his entire campaign on Iraq, and the escalating violence there meant he needed to `change the subject' to win in November.
That is why we are here today talking about same sex marriage. The President and Republican leadership know that a constitutional amendment to ban same sex marriage has virtually no chance of passing in the House, and now they have pulled the old bait and switch. Instead of bringing up a constitutional amendment that would go down in flames, we are instead debating a bill that would strip federal court and Supreme Court review of the Defense of Marriage Act.
At first glance, its proponents seem to have forgotten that our laws need to be constitutional. We all know from the Constitution and Marbury v. Madison that it is the role of the federal courts and the Supreme Court to review federal law. Yet that is exactly what this bill prohibits, virtually asking to be overturned.
In some ways, this bill should not be a surprise because Republicans always try to remove federal courts from the process when courts might issue rulings contrary to right-wing beliefs. They did not like the Ten Commandments or Pledge of Allegiance decisions, so they introduced numerous bills to prevent federal courts from hearing cases on those two declarations. They also severely limited the ability of federal courts to issue writs of habeas corpus for state convictions.
But make no mistake about it, this bill is the height of hypocrisy. In 2003, they made it a federal offense for a doctor to comply with a woman's right to choose. In the 1980's, they clogged up federal courts with drug offenses that had been left to the states. For at least a decade, they have been trying to move tort cases to the federal courts.
And no one can forget that it was the Republicans who ran up the steps to the Supreme Court in the winter of 2000 when they needed to secure a presidential election.
I urge my colleagues to vote `No' on this legislation.
Mr. NADLER. Mr. Chairman.
Chairman SENSENBRENNER. The Chair--are there amendments? The Chair----
Mr. NADLER. Mr. Chairman, I object. I want to read an opening statement.
Chairman SENSENBRENNER. Are there amendments? The Chair recognizes himself for purposes of offering an amendment in the nature of a substitute. The Clerk will report the amendment.
The CLERK. Amendment in the nature of a substitute to H.R. 3313 offered by Mr. Sensenbrenner. Strike all after the enacting clause and insert the following. Section 1, short title. This act may be cited as the `Marriage Protection Act of 2004.'
Section 2, limitation of jurisdiction. (a) In general. Chapter 99 of title 28, United States Code, is amended by adding at the end the following: Subsection 1632, limitation on jurisdiction. No court created by act of Congress shall have any jurisdiction and the Supreme Court shall have no appellate jurisdiction to hear or decide any questions pertaining to the interpretation of or the validity under the Constitution of section 1738C, or this section.
(b) amendments to the table of sections. The table of sections at the beginning of chapter 99 of title 28, United States Code, is amended by adding at the end of the following new item. 1632 limitation on jurisdiction.
[The amendment in the nature of a substitute offered by Mr. Sensenbrenner follows:]
Chairman SENSENBRENNER. The Chair recognizes himself for 5 minutes to explain the amendment. I offer this amendment in the nature of a substitute to focus this legislation in a way that will simply prevent Federal courts from striking down the provision of the Defense of Marriage Act that protects States from having to recognize same sex marriage licenses granted in other States.
When James Madison wrote the Constitution, I don't think his notion of federalism included the thought that a divided court in one State would set national policy. Legislation focused in this way eliminates the threat of inconsistent judgments that will affect marriage laws across State boundaries. It will also prevent Federal judges from taking away from the States their right, codified in DOMA to reject same sex marriage licenses issued elsewhere.
Any Member who wants to protect DOMA's provision preserving the States' prerogative to control marriage policy from invalidation by Federal judges should support this amendment in the nature of a substitute. The vast majority of Members of this Committee represent States that have passed laws that rely on the rights of States codified in DOMA to resist same sex marriage licenses issued out of State.
The threat posed to traditional marriage by a handful of Federal judges whose decision can have an impact across State boundaries has renewed concern over the abuse of power by Federal judges. A remedy to such abuses has long been considered to lie, among other places, in Congress' authority to limit Federal jurisdiction. The Constitution provides that the lower Federal courts are entirely creatures of Congress, as is the appellate jurisdiction of the Supreme Court, excluding only its very limited original jurisdiction over cases involving ambassadors and in cases in which States have legal claims against each other.
Limiting Federal court jurisdiction to avoid abuses is not a partisan issue. Senate minority leader Thomas Daschle of South Dakota supported legislation enacted during the last Congress that would deny all Federal courts jurisdiction over the procedures governing timber projects in order to expedite forest clearing. If limiting the jurisdiction of the Federal courts is good enough to protect trees, it also ought to be good enough to protect a State's marriage policy.
Furthermore, far from violating the separation of powers, as some have alleged, legislation that leaves State courts with jurisdiction to decide certain classes of cases would be an exercise of one of the very checks and balances provided for in the Constitution. No branch of the Federal Government can be entrusted with absolute power and certainly not a handful of tenured Federal judges who are appointed for life. The Constitution allows an exercise of judicial power, but it does not grant the Federal courts unchecked power to define the limits of its own power.
Integral to the American constitutional system is each branch of the Government's responsibility to use its powers to prevent overreaching by the other branches. This amendment in the nature of a substitute does just that, and I urge my colleagues to join me in supporting it.
I want to make a couple of other observations. First, marriage policy has traditionally been left to the States, and there are 50 different State family codes which include both marriage law and divorce law. If the issue ends up being decided by judges, until the Supreme Court reaches a decision on a given issue, a judicial decision by the lower Federal courts is only binding within the district in which the district judge sits or the States in which an appellate judge has jurisdiction or an appellate court has jurisdiction over. So a lot of the decisions that have been made in the Federal courts on issues other than the marriage issue will have the type of crazy quilt application, and one that comes to mind is telecommunications policy and the application of the antitrust laws in the telecommunication policy.
Secondly, this amendment does not foreclose the right of anybody to petition the State courts who are bound by the Constitution to reach a determination. But then it would be a decision of the judicial power of the State to decide whether or not DOMA was constitutional as it applied to that State rather than having a Federal judge do it. So this simply defers to the States.
We have done if before on trees, and since the Judiciary Act of 1789, and I would urge support for this amendment in the nature of a substitute.
The gentleman from New York, Mr. Nadler.
Mr. NADLER. Mr. Chairman, I move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. NADLER. Mr. Chairman, today we mark up legislation of clear unconstitutionality and even more dubious wisdom. Following four in a series of five hearings on the topic of same sex marriage, one would think that the possibility that somewhere a lesbian or gay couple might live out their years peacefully and happy were a greater threat to the future of the United States than al Qaeda, to which we have devoted less time in this Congress.
Today, however, the topic is a very serious one. The hysteria over the marriage question has brought us to the point of considering a bill that would strip the Federal courts of the jurisdiction to hear cases involving alleged violations of an individual's rights protected under the Constitution. These proposals are neither good law nor good policy. Past attempts to restrict court jurisdiction have followed many civil rights decisions, including the reapportionment cases.
Fortunately, cooler heads prevailed in Congress and the decisions that gave rise to these outlandish proposals are no longer controversial. Unless I am greatly mistaken no one in this room, not even Mr. Hostettler, would question the constitutional protection of one person, one vote.
No less a liberal icon than Barry Goldwater battled court stripping bills on school prayer, busing and abortion, which were the big issues in those days. He warned his colleagues that, quote, the frontal assault on the independence of the Federal courts is a dangerous blow to the foundations of the free society, close quote. It is still true today. I trust that decades from now these debates will find their way into the textbooks next to the segregationist backlash of the 1950's, the court packing plan of the 1930's and other attacks on our system of Government.
Our Committee has also received compelling testimony from a distinguished legal scholar called by the majority that this legislation is constitutionally suspect. Although Professor Redish has taken the controversial position that Congress has almost unlimited power to modify court jurisdiction, he made clear that this power is not without limits. As he put it so well in his testimony, quote, To be sure, several other guarantees contained in the Constitution, due process, separation of powers and equal protection, impose limitations on the scope of congressional power. The due process clause of the fifth amendment requires that a neutral independent and competent judicial forum remain available in cases in which the liberty or property interests of an individual or entity are at stake. The constitutional directive of equal protection restricts congressional power to employ its power to restrict jurisdiction in an unconstitutionally discriminatory matter. And as the Supreme Court made clear in the Roemer case, when the motivation for legislation is to deprive a specific class of people, in this case, gays and lesbians, of their access to the courts, that is a violation of the equal protection clause.
Professor Redish also had some sound advice for Congress. Purely as a matter of policy I believe that Congress should begin with a very strong presumption against seeking to manipulate judicial decisions indirectly by selectively restricting Federal judicial authority. To exclude Federal judicial power to interpret or enforce substantive Federal law undermines the vitally important function performed by the Federal Judiciary in the American political system. The expertise and uniformity in interpretation of Federal law that is provided by the Federal Judiciary should generally not be undermined. Close quote.
If there is any word that describes this legislation it is discriminatory both in its purpose and its effect. We have had four hearings so far on the subject of same sex marriage. Any court reviewing this legislation will certainly look at what has been said in the legislative record. The record is an unabashed record of hostility to a particularly unpopular minority. This bill has only one purpose, to ensure that members of this group do not get their day in court to assert their rights.
Would we ever have suggested any other group in our society should be expelled from the Federal court system and left to wander every county courthouse in the country to try to vindicate their rights under the Federal Constitution? Are State courts an adequate forum to protect Federal constitutional rights? The majority does not think so when you are talking about the rights of big corporations in tort law, but when it comes to the rights of families and their children that is a different story.
Perhaps my colleagues have forgotten that between the Judiciary Act of 1789 and the present day we fought a civil war and added the 14th amendment to our Constitution. Our rights are federally guaranteed. That means that an independent Federal judicial forum must be provided to all citizens to get a fair hearing.
Mr. Chairman, it is our very system of Government and the constitutional checks and balances that are under attack by this bill. If the Congress by statute can prevent the Federal courts from applying the Constitution to any subject matter, then the protections of an independent Judiciary and the Bill of Rights will be no more than a puff of smoke. It will be unpopular minorities, whether religious minorities, political minorities, lesbians or gays or whoever, who will lose their rights.
With all the hysteria and carrying on about unelected judges, it is perhaps worthwhile to remember that those unelected judges are part of our system of Government and part of our system of checks and balances. It is they who the authors of the Constitution saw fit to designate with a key role to protect the rights of unpopular minorities. As Hamilton said in Federalist 78, quote----
Chairman SENSENBRENNER. The time of the gentleman has expired.
Mr. NADLER. I would ask unanimous consent for one additional minute.
Chairman SENSENBRENNER. Without objection.
Mr. NADLER. The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution I understand one which contains certain specified exceptions to the legislative authority such, for instance, as that it shall pass no bills of attainder, no ex post facto laws and the like. Limitations of this kind can be preserved and practiced no other way than through the mediums of the courts of justice, whose duty it must be to declare all acts contrary to the manifest standard of the Constitution void. Without this all reservations to particular rights or privileges would amount to nothing. Close quote.
Mr. Chairman, gay marriage doesn't threaten our future, but the evisceration of our Constitution and our Bill of Rights and the destruction of the ability of the courts to protect those rights and leaving the vindication and the protection of Federal constitutional rights up to 50 State courts which will render 50 different decisions does threaten our rights and our liberties under the Constitution.
We are playing with fire, Mr. Chairman, and that fire could destroy this Nation. I urge that we adopt--that we reject this dangerous nonsense. I thank you, Mr. Chairman. Yield back.
Chairman SENSENBRENNER. The gentleman from Texas, Mr. Smith.
Mr. SMITH. Mr. Chairman, I move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. SMITH. Mr. Chairman, all Americans are entitled to a fair hearing before independent minded judges whose only allegiance is to the law. Too often we take for granted. But what should citizens do or their elected representatives when a few judges step out of bounds and try to change the rules of the game? Federal judges decide cases arising under the Constitution. However, over the last several years we have witnessed some judges wanting to determine social policy rather than interpret the Constitution. They seem to be legislators, not judges, promoters of a partisan agenda, not wise teachers relying on established law.
While judicial activism has existed since the founding of our Nation, it seems to have reached a crisis. Judges routinely overrule the will of the people and invent new rights and ignore traditional morality. Judges have redefined marriage, deemed the pledge of allegiance unconstitutional, outlawed religious practices and imposed their personal views on Americans.
Fortunately, there is a solution. The Constitution empowers Congress to say that some subjects are off limits to Federal courts. The founders of our Nation foresaw the dangers of an unbridled Judiciary and provided a way for Congress to put limits on the Judiciary that often appears to have none.
Thomas Jefferson lamented that, quote, the germ of dissolution of our Federal Government is in the Constitution of the Federal Judiciary, working like gravity by day and by night, gaining a little today and a little tomorrow and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped.
Responding to the argument that Federal judges are the final interpreters of the Constitution, Jefferson wrote, quote, you seem to consider the Federal judges as the ultimate arbiters of all constitutional questions. A very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy, end quote.
The constitutional authority authorizing Congress to restrain Federal courts has been used before and should be used again. Legislation being considered today preserves the right of State courts to consider the constitutionality of the full faith and credit portion of the Defense of Marriage Act, DOMA. It prevents Federal judges from ordering States to accept another State's domestic relations policy, an area of the law historically under the jurisdiction of the States, not the Federal Government.
While the bill does not dictate any conclusions about DOMA, the vast majority of States happen to agree with DOMA. Forty-four States have enacted laws that provide that marriage shall consist only of the union of a man and a woman. The 44 States include 86 percent of the U.S. population. We need to protect the right of the voters of these States to define marriage as they see it. This right is now threatened by activist judges who would overturn these State policies. When Federal judges step out of line, Congress has the responsibility to drop a red flag. On behalf of the American people, we should vote for this legislation because it rightfully restrains Federal judges who can in fact threaten our democracy.
Thank you, Mr. Chairman. I will yield back.
Mr. CONYERS. Mr. Chairman.
Chairman SENSENBRENNER. The gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Mr. Chairman, I would ask unanimous consent to speak out of order for 1 minute.
Chairman SENSENBRENNER. Without objection.
Mr. CONYERS. Today, ladies and gentlemen of the Committee, Carolyn Donnelly is going to be shortly leaving our staff on the Judiciary, and I wanted to pay a tribute to her 25-year career. Carolyn Donnelly. Would you raise your hand? Carolyn Donnelly. Thank you so much.
She has been a constant calm person with a sense of humor and good cheer that has marked her whole career. I and I don't think anyone have ever heard her raise her voice. She has always been on hand to help us. She was with some of us on the Government Operations Committee and is now completing her Federal career on the Committee on the Judiciary. We are real proud of her. She does a lot of volunteer work at her church, St. Patrick's Episcopal, and works in such programs as So Others Might Eat and the homeless programs, and so as you can see, Caroline, all of us on this Committee and the staff join in wishing you all the best as you leave the Hill.
Chairman SENSENBRENNER. Will the gentleman yield?
Mr. CONYERS. I certainly will.
Chairman SENSENBRENNER. The Chair would like to echo the comment that has been made by the gentleman from Michigan. Caroline, you have done a very good job in serving all of the Members of the Committee, not just the minority party Members of the Committee, and we all wish you Godspeed and a happy and healthy retirement.
Mr. CONYERS. Mr. Chairman.
Ms. BALDWIN. Mr. Chairman.
Chairman SENSENBRENNER. The gentlewoman from Wisconsin.
Ms. BALDWIN. Mr. Chairman, I move to strike the requisite number of words.
Chairman SENSENBRENNER. The gentlewoman is recognized for 5 minutes.
Ms. BALDWIN. Mr. Chairman, today this Committee is poised to mark up legislation that if it were to become law could do grave damage. I strongly oppose H.R. 3313 and this amendment in the nature of a substitute and would urge the Members in the majority to reconsider this extreme approach to addressing the issue of same sex marriage and their concerns about so-called judicial activism. The consequences of enacting H.R. 3313 far exceed the stated objectives of the majority and would seriously undermine the faith of the American people in this Congress, in the courts, and in the principle of separation of powers and the notion of checks and balances.
When writing the Constitution the founders wisely decided that the best way to secure our freedom and liberties was to establish three coequal branches of Government, the Congress, the Executive and the Supreme Court, and these three branches of Government have different but overlapping authorities to ensure that each branch is subject to checks and balances. Not only will there be times that they will be in disagreement about a particular issue or law, the structure of the Constitution makes these conflicts inevitable.
As the Chairman knows well, the University of Wisconsin is dedicated to the proposition that it is through, and I quote, the continual and fearless shifting and winnowing by which alone truth can be found. In the context of our laws, this sifting and winnowing occurs at many points in the process. In Congress we hold hearings, markups, floor votes and amendments, conference committees, and we issue reports. The White House proposes legislation, engages in public debates, signs and vetoes legislation. The courts interpret, evaluate, settle disputes and invalidate laws based on our bedrock principles as enshrined in our Constitution.
We all know the expression about liking laws and liking sausages and not watching either one get made. It isn't always a pretty process. But it is through the process which includes the Court that we sift and winnow our laws to improve them and ensure that they are fair and just for all Americans. It is a terrible mistake to try to strip one branch of the Government from its involvement in evaluating particular laws. This is particularly true when considering the courts, whose constitutional and historic role is to defend our liberties.
Fortunately for our citizens, it is my belief that H.R. 3313 and this amendment in the nature of a substitute is unconstitutional, and if it ever becomes law I believe it will be ultimately invalidated.
Mr. Chairman, during the Constitution Subcommittee's hearing on this issue on June 24, two witnesses were present, both law professors, one asked in by the majority, one asked to appear by the minority, and they actually addressed the question that the gentleman, the author of the underlying bill, raised in his opening testimony. They addressed the question `can Congress do this' and they addressed the question `should Congress do this'. And there was disagreement between these two expert witnesses, these constitutional scholars. Both--they reached different conclusions about whether Congress could do this, although even the majority witness said that power was not without limitations and they could not preclude access to the courts by a group of American citizens. But the question of should Congress do that, they answered with unanimity. Even the majority witness, Professor Martin Redish, said, and I quote his testimony because it was quite compelling: I firmly believe that Congress should choose to exercise this power virtually never.
I think that we should take their counsel as we mark up this legislation, and I urge on my fellow Committee Members that this legislation is unnecessary, unconstitutional and unwise. It should be rejected.
I yield back.
Mr. CHABOT. Mr. Chairman.
Chairman SENSENBRENNER. The gentleman from Ohio, the Chairman of the Subcommittee on the Constitution.
Mr. CHABOT. Move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. CHABOT. Thank you, Mr. Chairman. I don't intend to use the entire 5 minutes but I think this is a very important hearing, and I would just note that the Chairman of this Committee and I early on in this process set up a process by which we would have a series of hearings. We have held those hearings. We have invited legal experts from all over the country on both sides of the issue to come and testify. We have heard extensive testimony. Members of the Committee have had the opportunity on both sides to ask probing questions and get answers, answers back.
This is not something that we have just acted in a knee jerk fashion. It is not something we really sought. It is something that was thrust upon us principally due to the actions of a few rogue players around the country and a few, in my view, rogue judges who oftentimes on very narrow votes have chosen to go against the policy which previously was in effect within those particular States.
As I say, we held four hearings on this issue, and I would commend Mr. Hostettler for proposing this particular piece of legislation. I know he has given a tremendous amount of thought to it, as we all have, and the idea that this is something new, this so-called court stripping or reducing the jurisdiction of courts, the fact that that is unprecedented or it is in some way unconstitutional or contrary to things that have been done here recently is just not accurate. It has been done many times throughout time and, as the Chairman mentioned, most recently and perhaps most notably by the gentleman from South Dakota, Senator Daschle.
Now, that had to do with a bill relative to timber and trees and that sort of thing, but I think the Chairman is exactly right. If we are going to do it to protect trees, we certainly ought to do it to protect what has been the cornerstone of our society, and that is families in this country. And it is the families that are under attack and need, I believe, to be protected.
Now, I don't think we ought to change the marriage policy in this country. I think it should remain marriages between a man and a woman. But there are some that think it ought to be changed. The question that we are facing is if we are going to change that policy that has been the cornerstone of society and has been instrumental in how we raise kids in this country, should that be--who should make that decision? And I think most people think that this ought to be made by the will of the people. And how is the will of the people reflected in this country? It is reflected through their elected representatives.
At the local level, that is generally done in State legislatures. Nationally, it is done right here by the Congress of the United States. That is who ought to make that policy. It shouldn't be done on a 4 to 3 vote from Massachusetts or any other State. And the concern has been, and that is why some have proposed a constitutional amendment. That is something that is still being considered. That is not before us today but something that is being considered, a constitutional amendment, and the concern that some people have is that other States, the DOMA which we passed on a huge vote, bipartisan vote, 346 or something to 65, I believe, in the House, and 85 to I believe 14 in the Senate, one of those 14 happened to be Senator Kerry, who voted against that in the Senate. But that is over there. In both Houses it was overwhelming, and the concern is that that policy, which has worked for some time is now under attack and may well come from Massachusetts to my State of Ohio, or to Bill Jenkins here from Tennessee or to the Chairman up in Wisconsin or to other folks around the country, due to full faith and credit.
Now, Mr. Hostettler has crafted, I think, a very good solution here, at least in the short term. It may not hold long term. We may ultimately, even later this year a constitutional amendment may be something that we may be considering, but I think this is a good piece of legislation.
I would again commend the gentleman from Indiana for proposing this. We have done it before, and I could give you a whole range of examples but my time is about ready to run out. But again the most recent example was Senator Daschle. Senator Byrd proposed this on a whole range of issues some time ago. And so this is not unprecedented.
I would urge my colleagues to support this legislation. Yield back.
Chairman SENSENBRENNER. For what purpose does the gentlewoman from Texas, Ms. Jackson Lee, seek recognition.
Ms. JACKSON LEE. To strike the requisite number of words.
Chairman SENSENBRENNER. The gentlewoman's recognized for 5 minutes.
Ms. JACKSON LEE. I thank the Chairman very much. To my colleagues and to the Chairman and Ranking Member, I think we have tried most often in this Committee room, though sometimes we have not been successful, to respect the differing political and social, religious and human differences that we may bring to in place. We have often said that this Committee room is also the protector of the Constitution and the Nation as we know it. I don't know what to say about this legislation because I am somewhat taken aback by the quietness with which it has been defended and the lack of understanding that this literally undermines the Government as we know it.
I, in my skin, have not often been happy with the decisions of the Supreme Court or the Federal court system. In fact, I remember sitting in the United States Supreme Court and listening to the decision of the 2000 election. I couldn't have been more disappointed, more distraught, more taken aback, more frightened for this Nation, more concerned for my constituents, so much so that we showed up, a number of us, on January 6, 2001, again using a constitutionally provided provision or process under the Electoral College to challenge that election. Today, as I speak of it, I still feel a sense of panic and concern, frustration with the process and, yes, my country. But I will always hold to the fact that we have a system of Government, and there were times that in my skin, and my plight in this Nation, my second class citizenship, I could only look to the courts for relief.
What this amendment does, this legislation does, and I respect the right of anyone's religious position. I have just spoken to a number of ministers in my community and I know that they may have their positions on a number of issues. But Mr. Chairman, and Committee Members and Ranking Member, Article III specifically notes 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. The judges both of the Supreme and inferior courts shall hold their offices during good behavior.
Section 2 says the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States. How can we sit here and literally undermine the structure of Government that holds us together? It keeps us from being an Iraq, an Afghanistan, a Sudan, and any other despot place around the world.
I, too, have my position about the rights of individuals to be able to choose their partner and to engage in relationships. That is not the point. The point is that you have an amendment to the very nature of Government. That means that what we can spend our time in this Committee over the next couple of years is to frankly continue to amend by statute the powers of the Supreme Court and of the Article III courts.
I don't like the fact that affirmative action has not been fully and completely affirmed as I would like it by the Supreme Court, therefore I want them to have no jurisdiction. I am not comfortable by the continuous throwing out of civil rights cases in our Federal court system, therefore I should give them no jurisdiction over equal employment opportunity laws and any other laws dealing with civil rights and affirmative action and others.
I am not pleased with the immigration system in this country and the constant deportation and the lack of respect for those who have come to this country, albeit they may not have come in the right way, but they seek only to come here to be able to be part of this wonderful democracy, therefore I should amend the Federal courts totally out of the immigration system in its totality.
I do not like the enemy combatant, which we don't, and therefore I should make sure that our courts have no rights and privileges as relates to terror cases.
I do not like the Court's interpretation on first amendment, and therefore I should not have that.
Mr. Chairman, I would simply say that this amendment is more than undermining. It is absolutely dangerous.
Chairman SENSENBRENNER. The time of the gentlewoman has expired.
Ms. JACKSON LEE. And I would ask my colleagues to defeat it.
Chairman SENSENBRENNER. For what purpose does the gentleman from Alabama, Mr. Bachus, seek recognition?
Mr. BACHUS. Mr. Chairman, there has been much said
about----
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. BACHUS. Thank you. There has been much said about the rights of the Supreme Court and the Federal courts to be the final interpreter of what the law is, what is constitutional and what is not, and I would like to go back and quote what Thomas Jefferson and Abraham Lincoln said about this thoughts. Here is what Thomas Jefferson said about Federal judges being the final interpreters of the Constitution. He was responding to someone that made that statement.
You seem to consider that Federal judges are the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.
The Constitution has erected no such single tribunal knowing that to whatever hand is confided with the corruption of time and party its members become despots.
He said this: If Federal judges become the final arbiters, then indeed our Constitution is a complete act of suicide.
Here is what Abraham Lincoln had to say. Abraham Lincoln said this in his first inaugural address: The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of an eminent tribunal.
It is clear that both Jefferson and Abraham Lincoln had no such thought that Federal judges employed for life should be the final interpreters of the law. In fact, Thomas Jefferson actually said that the fact that they are appointed for life is one reason that they should not be the final interpreters of what the law is.
And I yield back the balance of my time.
Chairman SENSENBRENNER. What purpose does the gentleman from North Carolina seeks recognition?
Mr. WATT. I move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. WATT. Thank you, Mr. Chairman, and Members. If I might digress before I make the comments about what is before us today just to acknowledge the presence of my daughter-in-law in the audience, whom I have met before, but she brought with her her parents and her brother, whom I have never met before today.
So this is a very, very special day for me because I am getting the opportunity to meet my daughter in-law's parents and family for the first time. I assure you that they did not come to hear the debate on the same sex marriage issue or on the court stripping bill that is before us. It is happenstance that they are here today, but it is kind of unfortunate that they would be here to hear me for the first time in this legislative setting and meet me for the first time in a legislative setting having to address a bill such as this.
I am distressed by what this bill proposes to do because it is perhaps the ultimate example of legislating by results or trying to achieve a result through legislation that has become characteristic of this Committee over the last several years. We don't seem to have much principle about our whole Federal system and how it is formulated and set up and how it was envisioned by our Founding Fathers. We don't seem to have much appreciation anymore for the notion of States rights. We don't seem to have any appreciation anymore for the separation of powers. We simply want the result that we would like to have from whatever level of Government, whatever court decides it. If it gives us the result that we are looking for, then we seem to be happy and we don't care about what consequences that may have for our whole system of federalism, our Judiciary, the separation of powers or any of that, and this seems to me to be the ultimate example of that.
Take away the power of the Supreme Court to decide what due process is, what equal protection is, what--well, who then decides that? Fifty different State judiciaries. Maybe we should just do away with the whole United States and divide ourselves back into 50 different States. There were some powers that were given to the Federal Government and to our Judiciary in the founding documents that this bill, I think, substantially undermines, and I think it is unfortunate that we are considering this today. It is yet another example that we don't really believe in the principles that the Constitution was founded upon. If somebody puts their finger up in the wind and decides that the political winds may be blowing one way or another, we are willing to do whatever is necessary to go with that political wind and I think that is unfortunate.
I am just happy that there were people of principle standing up for the Federal Judiciary when it was trying to do the right things during the civil rights movement.
Chairman SENSENBRENNER. The gentleman's time has expired.
Mr. WATT. And I appreciate the opportunity to address this, and I will yield back the balance of my time.
Chairman SENSENBRENNER. The gentleman from Indiana, Mr. Pence.
Mr. PENCE. Move to strike the requisite number of words, Mr. Chairman.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. PENCE. Mr. Chairman, I am delighted to be here today. I am a strong supporter of the Marriage Protection Act of 2003. Appreciate your leadership and the visionary leadership of my colleague, Mr. Hostettler, from Indiana. I love being on this Committee because I love the Constitution, I love debate, and I listen to my colleagues, who are men much smarter than me and much more articulate. But I get lost, Mr. Chairman, when I hear words like what we are doing today is undermining the structure of Government. Or that we are engaging in, and I am quoting now, an attack on our system of Government. And that we are threatening grave damage to the intentions of our founders.
Well, I am looking at Article III, Section 2, Clause 2 of the United States Constitution, as proof 1789, and it reads, and I quote: The Supreme Court shall have appellate jurisdiction both as to law and fact with such exceptions and under such regulations as the Congress shall make.
Now, I heard a quote from some expert that Congress should never use that authority, or almost never I think was the reference. And I accept the opinion. But I am quoting fact, Mr. Chairman. The Constitution of the United States, which apparently is the form of Government that we are talking here, that we--again the quote was undermining our structure of Government--says that Congress has in this power to set the jurisdiction of the court. In fact, Abraham Lincoln in the aftermath of I think the 1858 Dred Scott case, whereby a 5-4 decision the United States Supreme Court said that slavery was the supreme law of the land in the new territories, Abraham Lincoln stood in this city in his first inaugural address and he took on not specifically Mr. Weiner's assertion because neither he nor I were born then, Mr. Weiner's assertion that the Court had the exclusive right to decide matters upon which the Constitution was to be decided as to the whole people.
Mr. Weiner said that was the assertion of Marbury v. Madison. Abraham Lincoln stood in this city on the steps of the Capitol across the street and he disagreed with that. He looked at the immorality of a decision that said people of African descent were not entitled to rights under the Constitution of the United States and he said, quote: I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court. And he went on to say that such decisions in private matters are certainly appropriate, but as Mr. Bachus just quoted, Abraham Lincoln said in his first inaugural address, referring to the Dred Scott case, the decision by the U.S. Supreme Court to codify slavery in the new territories. Abraham Lincoln said the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is irrevocably fixed by decisions of the court, the people will have ceased to be their own rulers, having to that extent practically resigned their Government to the hands of an eminent tribunal. And then he went on to say apropos to our discussion today: Nor is there in this view any assault upon the courts or judges. That is my reading of history.
What Article III says specifically, Mr. Chairman, what our 16th President of the United States said when he courageously led our Nation away from the moral horror of slavery, I mean it seems to me that although I would never attribute this to my--any of my distinguished colleagues, that there may well have been some people alive in 1859 and 1860, and I am sure I could find it in the historical record, who held the view the Supreme Court was the final decider on questions pertaining to the Constitution and President Lincoln ought to just shut up, and so ought the Congress ought to shut up on the question of whether or not people of African descent on this continent should have ever been afforded constitutional rights. And thank God he didn't, and thank God this Congress didn't.
The truth is, Mr. Chairman, that we are here to defend and uphold the Constitution. We are here to exercise----
Ms. JACKSON LEE. Will the gentleman yield?
Mr. PENCE. There is plenty of time later. We are here to exercise the authority given to this Congress under the Constitution----
Mr. NADLER. Will the gentleman yield for a question? Would the gentleman yield?
Mr. PENCE. I am about done. I will yield to Mr. Nadler.
Mr. NADLER. Thank you.
I would simply point out that the solution to the Dred Scott decision was the 13th and 14th amendments to the Constitution of the United States.
Chairman SENSENBRENNER. The gentleman from Indiana's time has expired.
Mr. PENCE. Thank you, Mr. Chairman.
Chairman SENSENBRENNER. Are there any second degree amendments to the amendment in the nature of a substitute?
The gentlewoman from Wisconsin, Ms. Baldwin.
Ms. BALDWIN. Mr. Chairman, I have an amendment to the amendment in the nature of a substitute at the desk.
Chairman SENSENBRENNER. The clerk will report the amendment.
The CLERK. Amendment to the amendment in the nature of a substitute to H.R. 3313 offered by Ms. Baldwin.
Page one----
Ms. BALDWIN. Mr. Chairman, I ask unanimous consent that the amendment be considered as read.
Chairman SENSENBRENNER. Without objection, so ordered. The gentlewoman is recognized for 5 minutes.
[The amendment to the amendment in the nature of a substitute offered by Ms. Baldwin follows:]
Ms. BALDWIN. Mr. Chairman, my amendment would narrow this bill before us so the Supreme Court and inferior Federal courts would retain jurisdiction for challenges to the Defense of Marriage Act based on fundamental constitutional rights. The amendment would allow the Federal court to consider challenges to the Defense of Marriage Act, otherwise know as DOMA, involving due process and equal protection clauses embodied in the 5th and 14th amendments.
Mr. Chairman, I believe that this legislation, the underlying legislation, is unnecessary, unconstitutional, and unwise. I can do nothing through amendment to make it necessary or to make it wise, but I can attempt through amendment to repair some of its constitutional defects in order to defend the rights of American citizens. This amendment will help to achieve that.
During the Constitution Subcommittee hearing on June 24, Professor Michael Gerhardt from the William & Mary Law School testified that H.R. 3313 would run afoul of the equal protection portion of the due process clause of the fifth amendment because the bill would fail the rational basis test, particularly in light of the court's decision in the Roemer v. Evans case, decided in 1996, in which they invalidated Colorado's anti-gay referendum. In Roemer, the court states that `a law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the Government is itself a denial of equal protection.'
Mr. Gerhardt also testified that the bill fails the fifth amendment due process guarantee of procedural fairness by denying a Federal forum to litigants. He testified that `excluding all Federal jurisdiction with respect to some Federal law forces litigants into State courts which are often thought to be hostile or unsympathetic to Federal interests.'
Professor Martin H. Redish of Northwestern University, a majority witness, also acknowledges the limitations on Congress' authority to limit court jurisdiction. He stated that `Congress quite clearly may not revoke or confine Federal jurisdiction in a discriminatory manner.'
The equal protection clause necessarily limits our power to sideline Federal courts. Congress cannot remove the Federal courts without ensuring that another neutral forum be available for an American to seek redress. Mr. Chairman, my amendment will remedy some of the serious failures with this legislation. If the majority believes in due process and if the majority believes in equal protection, which I hope and believe the majority does, you should agree to this amendment.
Please do not turn your backs on these two fundamental principles, and please remember it is our Federal courts that have been the venue and catalyst for helping our country to better realize Thomas Jefferson's words that all men, and I add, all women, are created equal.
Mr. Chairman, I yield back the balance of my time.
Chairman SENSENBRENNER. Mr. Chabot.
Mr. CHABOT. Mr. Chairman, I rise in opposition to this amendment.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. CHABOT. Mr. Chairman, this guts the bill and is totally unacceptable. This gutting amendment should be rejected because it would allow Federal courts themselves to strike down provisions aimed at limiting their own jurisdiction. It makes no sense at all. You are taking away a particular area of jurisdiction from the Federal courts and bringing them right back in. It is confusing and unnecessary and does not make any sense.
Lord Acton once stated that `power tends to corrupt, and absolute power corrupts absolutely.' no branch of the Government can be entrusted with absolute power; certainly not a handful of tenured Federal judges appointed for life. Those same judges should not be allowed to judge the extent of their own authority.
Congress' exercise of its authority to remove classes of cases from Federal court jurisdiction does not transfer power from the Federal judiciary to Congress; rather, it transfers power from the Federal judiciary to the State judiciary.
Congress' exercise of its authority to remove classes of cases from Federal court jurisdiction also does not give Congress the power to decide the outcome of those cases. That decisional authority would rest with the State courts. There seems to be, again, kind of a continuing misunderstanding that there would be no review. There will be a review. The review would be at the State level. The State courts are very well equipped to handle all kinds of decisions, including this particular type of issue. Again, this guts the bill. It is totally unnecessary and I strongly encourage my colleagues to oppose it.
Chairman SENSENBRENNER. Mr. Schiff.
Mr. SCHIFF. Mr. Chairman, I move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. SCHIFF. Mr. Chairman, this is now at least the fifth hearing we have had on the subject of gay marriage. I said during the fourth hearing, admittedly somewhat facetiously, that I did not think that was enough, and that you can never have too many hearings on gay marriage.
But, in fact, you can have too many hearings on one issue, particularly when it is to the exclusion of all other issues: when it excludes our ability to have a hearing on whether a Medicare actuary was threatened with being fired for disclosing to Congress the cost of the Medicare bill; whether a CIA agent was outed because her husband critiqued the Administration's use of a claim about seeking uranium from Niger; or even issues more particular to this Committee, whether the Administration should have the power to detain Americans as enemy combatants without giving them access to counsel or judicial review. We have not had time for those hearings.
The irony of this fifth hearing is that we are abdicating our responsibility to place any check on the executive branch of Government in favor of an assault on the judicial branch of Government.
Another reason why we can have too many hearings on a subject is evidently we are not listening to the witnesses we have called in these hearing. The DOMA panel testified unanimously, each of the four witnesses, they all felt DOMA was constitutional and would be upheld. If we listen to the testimony of the witnesses called in the Subcommittee, you would have to accept that this is probably unnecessary and unwise since the very law that the Committee is concerned about, its own witnesses have said unanimously I believe, is constitutional and likely to be upheld.
But instead, we now move to strip the court of jurisdiction over an issue which the experts believe will be upheld because of a chance that it will not be upheld in the Federal court. So what are we going to do? We are going to give that jurisdiction to State courts.
Then I go to one of the other panels we had where Mrs. Schlafly testified in favor of taking this away from the Federal courts and giving it to the State courts, to which I asked her, and I ask my colleagues on this panel, do we really want to take this issue away from the United States Supreme Court and give it to the Massachusetts Supreme Court? Or are we going to say we will give this jurisdiction only to certain State courts of our determination; and other State courts, we will not let them decide at all.
Indeed, the two experts who testified, as opposed to the two advocates on the court-stripping panel, both said that we ought to be very, very circumspect about ever exercising this power to remove the jurisdiction of the Federal courts merely because we anticipate we might not like the result of their exercise of that jurisdiction.
In fact, just looking at some of the bills introduced, we have great reason for the caution expressed by those experts. We have one bill, one bill which would remove Federal court jurisdiction over any policies, laws, or regulations concerning the free exercise or the establishment of religion, or the right of privacy or the right to marry, and should any Federal judge take up any issue involving that, the free exercise or establishment of religion, he is subject to impeachment under this bill.
We have another proposal by another of our colleagues to remove jurisdiction of the courts over the Ten Commandments, another over the Pledge of Allegiance, yet another bill to remove jurisdiction of the Federal courts over any issue affecting the acknowledgement of God as the sovereign source of law, liberty, and Government.
Again, the penalty for a judge who inquires or exercises jurisdiction there is impeachment, removal from office. Indeed, I asked one of the other witnesses on the court-stripping panel, our former colleague, Mr. Dannemeyer, why don't we just simply remove jurisdiction of the Federal courts over the entire first amendment and be done with it?
Does anybody on this Committee believe we can undermine the courts without belittling the Congress itself?
Does anyone believe we can force the court to look at the transient wishes of the Congress rather than the Constitution and not have it come back to undermine this very institution we serve in?
If it is the first amendment we remove now, when will it be the second amendment we remove from the jurisdiction of the courts?
Mr. CONYERS. Could the gentleman yield?
Mr. SCHIFF. Yes.
Mr. CONYERS. Did Mr. Dannemeyer want to remove the jurisdiction of the first amendment when you asked him that question?
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress From the State of Michigan, and Ranking Member, Committee on the Judiciary
Two of the most important rights enshrined in our Constitution are the rights to due process and to equal protection under the law. Those rights have been critical to protecting minorities against discrimination. Those rights have been critical to preserving every person's right to be heard and for decisions to be made in a consistent, nonarbitrary manner.
Unfortunately, this bill--as drafted--would disallow anyone from protecting those rights in court, if they believe those rights have been violated by the Defense of Marriage Act. For this reason, and other reasons, this statute is itself unconstitutional. The Congress cannot pass a statute which essentially invalidates constitutional rights by rendering them unenforceable. A right without any legal recourse is no right at all.
The Fourteenth Amendment to the United States Constitution says that `[n]o 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.'
Which part of these essential freedoms does the Majority disagree with?
Which part should be unenforceable by any United States Court?
When we were sworn into office, we all took an oath to `protect and defend the Constitution of the United States against all enemies, foreign and domestic.' Make no mistake about it: if you vote against this amendment, you are voting against one of the most vital and critical provisions in our Constitution.
Mr. SCHIFF. He was not prepared to go quite that far, and I asked him whether we should merely enumerate within the first amendment the series of issues that should be removed from the court's jurisdiction, and I think he was amenable to that. But in the end I think we get to what John Marshall warned of when he said that `the greatest scourge an angry heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt, or a dependent judiciary.'
Mr. Chairman, I yield back the balance of my time.
Chairman SENSENBRENNER. The gentleman from Indiana, Mr. Hotstettler.
Mr. HOSTETTLER. Mr. Chairman, I move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. HOSTETTLER. Mr. Chairman, I rise in opposition to the amendment and wish to refocus the discussion here on the constitutional provisions that we are actually talking about, and that is the constitutional provision in Article 4, section 1, that allows Congress to regulate the full faith and credit provisions between the States. It does not allow the courts to do it. It does not allow the President to do it. It says that Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be approved, and the effect thereof. Congress and Congress only. And we did that in the Defense of Marriage Act.
If you believe that the Constitution allows Congress to do that and that Congress has done that, then the second question is do you find constitutional authority to regulate the Federal courts? This so-called independent court, that I would suggest to my colleagues that I don't see the modifier of independence in any discussion of the courts in the Constitution. In fact, at virtually every turn, the Congress is given the authority to check the courts. Also in Article 1, section 8, in Article 3, section 1 and 2. And then with regard to full faith and credit, we can likewise do it.
If we can refocus our attention on what the Constitution actually says, we will find that in fact we can do this. If the gentlewoman would like to deal with the due process clause of the 14th amendment, and the equal protection clause of the 14th amendment, then the 14th amendment itself guarantees that Congress can do that, in that the 14th amendment says in section 5 that Congress shall have power to enforce by appropriate legislation the provisions of this article. She has the power to do that in a bill that she can introduce, but the simple fact of the matter is we are talking about explicit and exclusive authority of the Congress. There is no need to hand over authority to the judiciary to judge on matters where the Constitution grants explicit and exclusive authority to the Congress.
Mr. Chairman, I yield back the balance of my time. I ask my colleagues to defeat the amendment.
Chairman SENSENBRENNER. Mr. Weiner.
Mr. WEINER. Mr. Chairman, first I think this whole debate must be very dispiriting to anybody who supported DOMA. If you read the debate on the Defense of Marriage Act, there was a rather spirited discussion about whether or not DOMA would withstand constitutional muster. Some of the people who argued most fiercely at the time that yes it would, it would, it would, are now obviously retreating from that position; because if you believe it is in the Constitution, there is no reason to court strip or court shop or court disengage at all.
In fact, the Chairman in some of his remarks leading up to this hearing, I believe, has taken the intellectually consistent position, although it may change with this vote, that hey, we were concerned about one court in one State dictating to another; therefore, we passed a law stating congressional supremacy in the issue, saying you do not have to acknowledge and recognize that law. That was DOMA. DOMA is the law of the land. Why the panic? You obviously believe that DOMA was so badly flawed that many of the opponents of the law at the time were right, that it is constitutionally flawed.
Finally, I think we are having this debate here in the Judiciary Committee 1 year late for the 200th anniversary of Marbury v. Madison. This is an excellent Constitutional Law 101 discussion about a fundamental blind spot, perhaps, in the Constitution of the United States, the document we revere. Nowhere did it say, anywhere does it say that courts have the right to strike down an act of Congress. It does not say that anywhere. You are exactly right. Well, in 1803 in what I think was a brilliantly reasoned case, which frankly I think some of the meshuggahs on the Supreme Court do not contest, even they do not say, even those folks who are so self-loathing about the courts that even they do not say that Marbury v. Madison was wrongly decided. There is an acceptance in this country that we are going to allow the courts to resolve these conflicts. They do not do it often. As a matter of fact, I think after Marbury v. Madison it went 50 years without them doing it again, 50 years without them striking down another congressional act as unconstitutional.
Finally, let me just clarify something else. We say this is done all of the time. It is not done all of the time. There are instances in the law where people say administrative proceedings and administrative tribunals cannot act on this with that provision. That was the Daschle case and the Byrd case. But nowhere does it say there isn't judicial review. Nowhere. You find me a case that said there is no access to the courts for someone who wants to challenge the interpretation of this law. That is not what happens.
Sure, I don't have a problem with it going the other way as well, saying some cases like in the McCain-Feingold bill or the Shays-Meehan bill, we say go straight to the Supreme Court. I do not have a problem with that. But the fundamental premise of what we do around here is that someone is going to mediate these disputes.
Mr. CONYERS. Would the gentleman yield for a question?
Mr. WEINER. I certainly will.
Mr. CONYERS. Can you explain to me what a meshuggah is, please?
Chairman SENSENBRENNER. And would you please spell that so the court reporter gets it right the first time?
Mr. WEINER. Mr. Chairman, I have been reminded under the rules of the House, English is the official language of our proceedings, so I will withdraw the use of that word.
Chairman SENSENBRENNER. Without objection, the word is stricken.
Mr. WEINER. Let me just conclude by saying this is an interesting discussion for someone like me, one of the few Members of this Committee who is not an attorney general. It is very interesting. I get to say things like Marbury v. Madison, which is not something I usually get to do, but this is a little surreal. We are all beating our chest, and the gentleman from Indiana saying we are in charge. No. We pass laws and then we give it to the Supreme Court. Even when they screw things up like they did in Gore v. Bush, we still stick to it. We say things have to go on. There has to be some arbiter of these decisions, and every American, every American, whether you believe what they do or not, has a right to the courts. That is a fundamental premise of our system of Government. And to say well, we are not going to do it in this or that case ignores the well-reasoned case of Marbury v. Madison.
At the end of day, if you remember, it was a victory for Republicans. It was a victory for Republicans because they actually ruled in favor of the Republican position. So I would urge my colleagues to keep in mind that this is not a new concept.
Chairman SENSENBRENNER. The gentleman's time has expired.
Mr. Feeney.
Mr. FEENEY. Mr. Chairman, I move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. FEENEY. Mr. Chairman, people paying close attention to this debate are getting lost in some of the sophisms that are going on. It is a pretty simple bill that we are passing, and the amendment seeks essentially to gut the bill. The proponents of the amendment and the people who oppose our determination to try to defend marriage from the Massachusetts Supreme Court basically suggest something that I find bizarre, and that is that which the Constitution gives to the Congress, Article 3, section 1, Congress cannot later modify or subtract from or eliminate.
I find that sort of an absurd premise to base their argument on. I will tell you that from the very first act involving the judiciary, Congress engaged in limiting some of the court's jurisdiction. I will tell you that in Federalist 80, Alexander Hamilton, as he tried to convince Americans to support and ratify the Constitution, said at times Federal court jurisdiction would become out of line and he suggested that would not be a problem because `the national legislature will have ample authority to make such exceptions and prescribe such regulations as will be calculated to obviate or remove these in conveniences.'
Later, in Federalist 81, Hamilton wrote that legislature could make such exceptions and regulations as the national legislature may prescribe. These are very important. These are the type of things that Senator Daschle engaged in in protesting forests and wildlife in his area.
What we are trying to do here today is very simple. We are trying to protect the people of 49 States from four judges' redefinition of marriage on the Massachusetts Supreme Court. We are trying to ensure they cannot impose some new definition of marriage on the other 49 States.
Article 4 of our Constitution guarantees all of us a republican, small `r,' form of government, meaning you as citizens get to vote for the people that will make your laws. None of us voted for the four characters that redefined marriage in Massachusetts.
Now, if you want to live under philosopher kings making your laws for you, if you believe oligarchy is a great form of government, that is a different position. Plato, for example, in The Republic suggested that is a great way to be governed; but it is not our form of Government, and thank God it is not.
I will say that if the people of Massachusetts want to lived under a judicial oligarchy, as Lincoln said, if they have decided to cease to become their own rulers, there is probably not much we can do to save the people of Massachusetts. But at least with respect to protecting the definition of marriage, Mr. Hotstettler's good bill will give us the right in 49 other States to preserve the democratic principle that our State legislatures and not the Massachusetts justices get to define what marriage means.
Mr. Chairman, I yield back the balance of my time.
Chairman SENSENBRENNER. The Chair will note it is anticipated there will be three or four votes on the floor about 1 p.m. Should we not finish the bill before 1, we will be coming back after the votes and after a period for lunch. Members should set their schedules accordingly.
The gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Mr. Chairman, as I understand the opposition to this amendment, the bill will be ineffective. We will gut the bill if we allow courts to enforce the 5th and 14th amendments to the Constitution.
I yield to anyone who disagrees with that assessment.
Mr. CHABOT. Would the gentleman repeat his question? No one was listening, I am afraid.
Mr. SCOTT. As I understand the opposition to the amendment, the bill will be ineffective, we will gut the bill if we allow courts to enforce the 5th and 14th amendments to the Constitution.
Mr. CHABOT. Would the gentleman yield?
Mr. SCOTT. I yield.
Mr. CHABOT. I don't think that is what we are saying. We are saying that without this amendment the States can already have judicial review. It is the Federal courts who would not be able to have judicial review.
Mr. SCOTT. Let me state my statement again. As I understand the opposition to the amendment now, the bill will be ineffective, we will gut the bill if we allow Federal courts to enforce the 5th and the 14th amendments to the Constitution.
Mr. CHABOT. Would the gentleman yield?
Mr. SCOTT. I yield.
Mr. CHABOT. What we are doing, we are giving the States the ability to review. We are taking the jurisdiction away from the Federal courts which has been done innumerable times prior to this occasion.
Mr. SCOTT. Let me restate it then. Am I right in saying we will gut the bill if we allow the Federal courts to enforce the 5th and 14th amendments to the Constitution?
Mr. CHABOT. Will the gentleman yield?
Mr. SCOTT. I yield.
Mr. CHABOT. In this case, yes.
Mr. SCOTT. Thank you.
Mr. Chairman, I yield back the balance of my time.
Mr. NADLER. Mr. Chairman.
Chairman SENSENBRENNER. The gentleman from New York.
Mr. NADLER. Mr. Chairman, I have a number of comments. First, it is very clear this amendment does gut the bill. It is intended to gut the bill. It should gut the bill. The bill ought to be gutted.
But the point is, it guts the bill because it says that the bill cannot be enforced by depriving the Federal courts of the ability to enforce the 5th and 14th amendments. That is what it does. And the bill in fact deprives the Federal courts of the ability to enforce the United States Constitution with respect to the subject matter at hand. That is one reason why it is an obnoxious bill.
We have been told, and Mr. Chabot says it repeatedly, that the State courts will be able to uphold the Constitution of the United States. Well, yeah, they would be, but that would clearly mean that some State courts might rule that DOMA violates the 5th or 14th amendments. Some other State courts might rule it doesn't. There would be a patchwork quilt across the country. The Constitution would mean different things in different States.
Mr. CHABOT. Would the gentleman yield?
Mr. NADLER. Yes.
Mr. CHABOT. The effect would only be felt within that particular State, so that is up to that State.
Mr. NADLER. Mr. Chairman, reclaiming my time, you are not disagreeing with what I said.
The Constitution would be different in different States. In New York, the courts might say DOMA is constitutional. In Colorado, the courts--and maybe I have it backwards--in Colorado the courts might say DOMA is not constitutional, according to the Federal Constitution. It was--and I do not remember which distinguished justice of the Supreme Court, whether it was Marshall or Frankfurter or Holmes--it was one of the greats, who said a number of decades ago that if the power of the court to declare a law passed by Congress unconstitutional were withdrawn, the country would survive.
If the power of the courts to declare a law passed by the States unconstitutional were withdrawn, the country would not survive, because the fact is that you cannot have a unified country if the Constitution of the United States is interpreted differently in the different States. That is why we have the supremacy clause in the Constitution. That is why the Constitution is declared by the supremacy clause to be superior to any State laws or any State constitution so we have one country.
What this would do by stripping the Federal courts of the ability to interpret the Constitution in certain respects and leaving it to the State courts means you would have 50 different countries in effect, 50 different constitutions, at least in this area. Now, that is ridiculous.
It also is clear that this bill is unconstitutional because it would violate--and when Mr. Feeney talks about the core function of the Supreme Court, or the court system, is that we should have one Constitution, not 50 constitutions--this would violate that. And whether it is Federalist 78 or Federalist No. 80 which says specifically, and Federalist No. 80 says the core functions of the judiciary, including ensuring the supremacy and uniformity of Federal law and that congressional action to undermine these functions would be impermissible.
The Marriage Protection Act wholly violates the separation of powers principle explained in Federalist Paper No. 80. Under the Marriage Protection Act, this bill, all challenges to the cross-State recognition of DOMA would be finally determined by the 50 State supreme courts. No gay or lesbian couple would be ever able to appeal to the United States Supreme Court, and no State would be able to either remove a challenge to DOMA to Federal court or to appeal to the United States Supreme Court. The Marriage Protection Act would cause the very legal chaos the U.S. Supreme Court averts by its core function of being the final authority on the constitutionality of Federal statutes. The Congress cannot deny the Supreme Court this core function.
Finally, let me say that the case of the legislation sponsored by Senator Daschle that was cited as a precedent is not a precedent. The court of appeals in upholding that statute ruled in the case of Biodiversity v. Cables that the challenge legislation's jurisdictional bar did not apply to preclude court of appeals' review as to the legislation's validity under the Constitution. So it is a wholly different case, and it is not a posit to this.
I maintain again this law is bad law. It is unconstitutional law, it would divide this country into 50 different countries, and the gentlewoman's amendment would gut the bill and ought, therefore, to be adopted.
Mr. NADLER. I ask unanimous consent to put this case into the record.
Chairman SENSENBRENNER. Without objection, so ordered.
[The material referred to follows:]
Mr. BACHUS. Mr. Chairman, I move to strike the last word.
Chairman SENSENBRENNER. Mr. Bachus is recognized for 5 minutes.
Mr. BACHUS. Mr. Chairman, I am really surprised at my colleagues, in two regards. First, some of them have suggested this is all a waste of time, that this is a trivial or unimportant matter. I would say to all Members, how we define a marriage, whether we continue to define it as all States do and as the Federal Government has, as a marriage between a man and a woman, or whether we allow the courts to disregard that and to invalidate these laws and say that a marriage is not restricted to a man and a woman, it can be two men or two women, first of all, I would say to all of the Members that hopefully we at least ought to be able to agree that is a very important matter. That is fundamental to who we are as a people, to our beliefs, and to who we are as a country.
Second of all, and I think equally absurd, is that somehow to argue that this body, which the Constitution clearly establishes as the lawmaking body under the Constitution, that this body should not make law on this, that we should allow the courts to make law or invalidate laws by legislators, by the properly elected legislature. It is in fact clearly under the Constitution. It is clearly, and any argument to the contrary is, I think, without any merit that this body has no right to make law in this regard or to protect laws which are on the books.
Mr. Chairman, I yield the balance of my time to the gentleman from Indiana, Mr. Hostettler.
Mr. HOSTETTLER. Mr. Chairman, there has been much discussion about a concern of patchwork of marriage laws. Today we have essentially a micro patchwork of marriage laws in that the State of Massachusetts is allowing homosexual couples to marry, which is inconsistent with a vast majority of the States' policies. If Members are opposed to a patchwork of marriage laws, you must have one or two stances on this issue.
First, you must support the gentlewoman from Colorado's amendment to the Constitution to eradicate the notion of a patchwork of marriage laws; or you must introduce your own amendment which says all States must allow homosexual marriage, similar to the status of what is going on in Massachusetts.
If you oppose a patchwork of marriage laws, as we have patchworks of insurance laws, of all types of laws, property laws, zoning laws and ordinances, if you oppose a patchwork of laws for marriage, then you must be in favor of a uniform approach to marriage. I don't think very many of my colleagues on the other side of the aisle are at this point supporting the gentlewoman from Colorado's approach to amending the Constitution on marriage, so I must assume that in the wings is waiting a constitutional amendment to amend the Constitution requiring that all 50 States and territories of the United States and the District of Columbia must require that each State grant a marriage license to homosexual couples.
Ms. WATERS. Will the gentleman yield?
Mr. HOSTETTLER. It is the gentleman from Alabama's time.
Mr. BACHUS. I have yielded to the gentleman from Indiana.
Chairman SENSENBRENNER. The time still belongs to you.
Mr. BACHUS. Mr. Chairman, I will close by saying that I think it ought to be up to the people of the United States, through their elected representatives, to make these important decisions. And I think it is incumbent upon every Member of this Congress to take a stand on how you feel, representing the people you represent, and not to run from this and leave it to an unelected judiciary to make these important decisions. This is an important decision to our country, to our Nation, and to our future, and it ought not be decided by elected judges. It ought to be decided by the people who sent us up here to represent them. The people ought to make this decision, not unelected judges.
Mr. WEXLER. Mr. Chairman, I move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. WEXLER. Mr. Chairman, nobody on this side of the aisle is running from the issue; just the opposite. If I understand the gentleman from Alabama's argument, it essentially goes like this. The issue in definition of marriage is so important, therefore, we ought to engage in a debate and a serious discussion. He takes exception with those that say it isn't or does not rise to the level of national importance so as to discard or move aside the other elements of national debate, but this issue is so important, so fundamental, that we must strike the jurisdiction of the Federal courts from ever entertaining it.
It is that important that we need to single out the issue of definition of marriage and the Federal courts should not entertain it. If we were engaging in a discussion of the general jurisdiction of the Federal courts of the United States, that might be a legitimate argument, but I give my colleague and friend from Florida, Mr. Feeney, credit when he spoke about what is the purpose of this bill.
Americans in good conscience have a differing level of opinion as to what defines marriage and a different level of comfort with different situations. But what an overwhelming number of Americans entirely are uncomfortable with is when their own Government singles out a law-abiding group of people for special treatment which is discriminatory in the process of our Government.
Whether one is comfortable or not comfortable with gay marriage is one thing. Whether one believes marriage ought to be unique to a man and woman or ought to be able to be entertained and entered into by same-sex individuals and couples, that is one thing. But to go a step further and say that because someone chooses to enter into a same-sex marriage, then they have in effect given up their rights to go to the Federal courts and ask for the same constitutional protection as any other American. We are not trying to preordain a result. What we say is the Federal courts ought to have their opportunity to weigh in on this issue like they have in every other important issue that affects our society.
With all due respect to the general definitions of we are seeking to protect marriage, I just want to go on record as one individual, one American, who is married to a woman who does not in any way feel jeopardized by the fact that men or women in Massachusetts or California or anywhere else in the country choose to engage in a monogamous relationship that is protected by law, and I wish those men and women well. I hope they have a long relationship, that they engage in a meaningful, loving relationship, and it does not in any way jeopardize my relationship with the woman I chose to marry.
If we can get off this sanctimonious box of saying that those of us who are heterosexual and marry a man or woman opposite to our sex are somehow jeopardized by two loving people, whether they be men or women, and that our whole structure of life is coming crumbling down, I would respectfully argue that is not the issue. The issue is are we going to allow law-abiding Americans their day in court and let the courts decide based on a Constitution provision of 200-plus years.
Mr. Chairman, I yield to the gentleman from Massachusetts.
Mr. DELAHUNT. Mr. Chairman, I thank the gentleman for yielding.
In response to my dear friend from Alabama, no one is running away from the issue. What I would have hoped is the majority, the proponents of this legislation, would have put out before us for consideration an amendment to the Constitution, much as what has occurred in the other body, and let us have the vote.
But I do think that going in this direction, what we do is reconfigure the relationship between the three independent branches of Government. Let us be honest. What we are doing here is we are divesting from the United States Supreme Court the right of appellate review. I don't know, maybe someone can tell me from either side of the aisle.
Chairman SENSENBRENNER. The gentleman from Florida's time has expired.
Mr. CARTER. Mr. Chairman.
Chairman SENSENBRENNER. Judge Carter from Texas is recognized for 5 minutes.
Mr. CARTER. Mr. Chairman, I have been listening to this debate and I have been reading the Constitution. I am really reserved as to what the other side is saying. I have tried to uphold the Constitution for the entire time I served on the bench.
The question we have as Members of Congress is do we have to meet the duties and responsibility that are set out in the Constitution for Members of Congress?
When our Founding Fathers, when they faced a court prior to their independence, that court was a court that represented the crown. The crown was the king. The tyrannical king was what they were overthrowing when they declared their independence from Great Britain, so they clearly would have viewed a court system to be speaking for the crown at the time that they declared their independence.
We substituted in our Constitution, in Article 3, the crown for the United States Constitution by declaring the judicial power of the United States shall be vested in one Supreme Court, et cetera. Our Constitution then stepped into the position that the crown had made. Now we have to look at does the court system by its independence, declared by unelected judges, are they at some point reaching a tyranny against this country. Who is supposed to look into that and see whether it is that in the opinion of the majority of the Congress? It is the Congress. It says right here, with such exceptions and rules and regulations as the Congress shall make. It says in Article 4 that the Congress may by general law prescribe the manner and acts and records and so forth.
This is a duty imposed upon the Congress of the United States.
Now, the fact that the Congress has never raised this duty to the level of a constitutional crisis, does that mean you are not supposed to do that? I happen to agree with the minority, this probably does raise the constitutional crisis. I do think that constitutional crisis will be resolved by the Supreme Court of the United States no matter what we write into this law. But I think by the fact that we are given the declaration `shall' and in drafting--from anybody's interpretation of drafting legislation, `shall' means you have got to do it. At some point in time when the majority of this Congress feels like an issue ought to be raised, even if it is a constitutional crisis, we have a duty if we believe in this Constitution to raise that issue. And if not, then I would like someone on the other side of the aisle to tell me who should uphold the provisions of Article 3 of the Constitution which says the Congress shall.
Mr. WEINER. Would the gentleman yield?
Mr. CARTER. I yield.
Mr. WEINER. Mr. Chairman, it is funny that the gentleman says that, because today a bill that is sponsored by Mr. Bachus is on the floor commemorating the life of John Marshall. He asked that exact same question and answered it in a case that you are familiar with.
Mr. CARTER. I know I am familiar with it.
Mr. WEINER. I guarantee from time to time you have been glad it was argued, which is Marbury v. Madison. That is exactly where that question is answered.
Mr. Chairman, I ask unanimous consent that the decision of Marbury v. Madison be placed in the record at this point.
Mr. SMITH. [Presiding] That unanimous consent request is granted.
[The material referred to follows:]
Mr. WEINER. I have a copy here.
Mr. CARTER. Reclaiming my time, no, it does not speak to Marbury v. Madison. This question is where is the check and balance in this Constitution if it is not in the writing of the Constitution that the Congress has over the court? There it is, right there in black and white. We have a check and balance over the court. Marbury v. Madison, there is nobody trying to limit the jurisdiction of the court.
Mr. WEINER. If the gentleman would yield, that is exactly what the case was. It was a case about whether or not the writ of mandamus, whether the court could order Congress, could order another branch, the executive branch, to issue this writ; and the executive said what you just said: No, no, the Constitution says that only the Congress can do that. And John Marshall, in an extraordinarily reasoned decision, said oh, no, we are not all equal. In the case of interpreting acts of the executive and the legislature, it is the judicial branch that has the final say. That is exactly the precedent.
Mr. CARTER. We are not talking about interpreting the acts of the legislative branch. We are talking about interpreting the acts of the judicial.
Chairman SENSENBRENNER. The gentleman's time has expired.
The gentleman from California, Ms. Waters.
Ms. WATERS. Thank you very much, Mr. Chairman.
I came to this hearing today with no real intention of engaging in discussion on this legislation because I feel so strongly that it is simply political in nature and that it is designed to strengthen a more conservative element of this country with an eye towards the elections in November.
However, I am really surprised at some of the debate which is taking place. We have been challenged on this side of the aisle that if we do not like this legislation, that somehow we have to be for a constitutional amendment that would force the State to do what we would want it to do, and that is absolutely not true.
I think on this side of the aisle we are simply for equal protection under the law. You talk about the rule of law. The rule of law in this country is that none of us will be excluded from access to the courts. None of us. It does not matter whether you are gay or lesbian or black or disabled, you have the right to petition your courts at every level.
I do not quite understand the argument that likens the Supreme Court to the crown, and then goes on to say that in some way these unelected judges are synonymous to the Supreme Court, and when we take them on, we are taking on the crown or that which substituted for the crown, the Supreme Court. We simply want the right for folks to be able to get to the Supreme Court. We are very fair in what we are talking about. What we are saying is yes, you have a patchwork of laws at the State level, and let those who will, take this debate all of the way to the highest level of the courts in this country.
Why would anybody block the ability to take the debate and the argument to the highest level so that decisions can be made?
Let me just say after we get through with the so-called dispassionate arguments on this issue, arguing the law, disagreeing on jurisdiction, all of that, this is one of the most divisive, political acts that could be committed by an elected official. We are dividing communities, we are pitting families against each other. We are causing even people who work in this building and elected officials to try and hide their preferences based on accusations and threats of outing. How can you do this?
I want to tell the Members of this body that we see this division at the highest level. Isn't it absolutely telling that the Vice President of the United States and his wife are now in public view disagreeing on this issue. You know why? They are torn. They are torn because they have a child who is openly lesbian, and one parent has made the decision that they will do the political thing and do whatever they are told to do by the President of the United States, and another member of that family is saying I stand with where my husband said he stood when he said he believed that it should remain with the States.
And so despite the fact that I think we can argue all day long about equal protection, unelected jurists, whether or not the Supreme Court should be blocked from ever hearing cases on this issue, the fact of the matter is this is simply a political move. This is simply an issue which has been framed a few months from an election. I would hope that we would discontinue, close this down, and go on with the business of this Government with so many important issues which need to be attended to.
Mr. Chairman, I yield to the gentleman from Massachusetts.
Mr. DELAHUNT. Mr. Chairman, I thank the gentlewoman for yielding.
We have heard about unelected judges and the rights of people to make these decisions, which some believe is so fundamental.
Let me issue a challenge. There is nothing more open in terms of listening to the people's views on a constitutional amendment. We all know the process that would be required. What I would suggest is that those who feel that unelected judges should not be involved--and in most States there are unelected judges--I think it would be a better course to bring before this Committee a constitutional amendment, which I would oppose.
Chairman SENSENBRENNER. The gentlewoman's time has expired.
Mr. KING. Mr. Chairman, I move to strike the last word.
Chairman SENSENBRENNER. The gentleman from Iowa, Mr. King.
Mr. KING. Mr. Chairman, I would like to speak to a broader issue as to what is at stake here. When we discuss the constitutional aspects, one of the questions is where is the check? If Congress is not the check on the overreach of power by the judiciary, where is it? I will say, Congress is the check.
One thing is that the courts will hear this case. They will hear this case eventually, and we are asking them to go back and reread the Constitution and finally make a decision after a couple of centuries on where the check is on the tyranny of the courts.
But what is at stake here is marriage itself, our families, our way of life. And all of human history points to a man and a woman joined together in matrimony, raising children, passing their values along, father and mother, to the next generation; their religious values, their community's values, their sense of community and nationhood and history. That has been proven throughout the millennia to be the undisputed method by which a civilization survives.
Here we have another argument in front of us that says we can use the courts to contravene the will of the people to impose another kind of a relationship here by the virtue of four judges to three in Massachusetts imposing that upon the rest of the Nation. If that happens, and if you argue that we should not draw the line at marriage as we know it, then where would you draw the line? If we do not draw this line here and limit the jurisdictions of the courts and slow down this contravention of the will of the people, where do we draw the line?
Do we draw the line, as Mr. Frank testified in a hearing, he would draw it at two people. We have heard that in testimony earlier today. How would you draw it at two people? If you cannot draw it at a man and woman, how do you draw the line at two people and not three. If you cannot draw the line at three people, how do you draw the line with any other relationship that is out there? Eventually if this precedent is allowed to stand which has been established in Massachusetts, then eventually every human relationship will become a constitutional right by the same logic. If those human relationships become constitutional rights, it breaks down the entire structure of family and relationship.
And, we are a in values-neutral society. I am not worried about the high-school kids today, I am worried about the ones that are just born and those yet to be born that will grow into a society that they do not know the traditions that we have. They will be told, you don't know what you might be and what your preferences might be, so you ought to experiment with a number and settle on one or two or three, or rotate throughout a lifetime. They will be told that one relationship is as good as any other. They will have a menu of life far different than the one that we are talking about here, and that menu of life will encourage them to try to sample along that list. When that happens, you will see relationships form for reasons other than personal love. For example, there will be relationships formed because they want to access someone's 401(k) plan or somebody's health care plan or retirement plan or inheritance. So we do not have either a limitation on what group relationship could be married to another group relationship.
What would be the constitutional prohibition? How could we ever limit a group marriage and one of those people being into another group marriage? It ends up in a never-ending, interconnecting link of relationships which breaks down this entire structure, this structure of family which has been proven through at least 6,000 years to be the model that perpetuates our situation.
The argument has to be a lot stronger from the other side. Marriage is not a right. It is not a constitutional right. It is not a civil right. We give a marriage license. A license is by definition permission to do something which is otherwise not legal. It is a privilege to get married, d we support that because of all of the good things that I have described and many more beyond. It does not discriminate against anybody else. We want people to have the privacy of their lives, we just do not want that imposed upon all of the States, and we absolutely do not want to see Massachusetts law imposed upon the entire United States of America.
The Hostettler bill slows that process down. We do need a constitutional amendment. We must save marriage. It is the most critical issue of our time.
Mr. Chairman, I yield back the balance of my time.
Chairman SENSENBRENNER. The gentlewoman from California, Ms. Lofgren.
Ms. LOFGREN. Mr. Chairman, I like my colleague, Ms. Waters, had not planned to engage in debate this morning but I feel a need to say a couple of things.
First, as Ms. Waters has noted, have debated this on two levels. The first is really the substance, and I think it is clear there is just one reason why this measure is before us today, and that is to divide America for political gain, and I think it is quite unfortunate that is the goal which is being pursued.
Also, I have been a Member of the Judiciary Committee for 9 1/2 years, and I think we have hit an all-time low in terms of debate on the legal issues before us. I mean, the proponents of this bill have said so many preposterous things, I find it almost embarrassing to listen to it. So I have a request. I would like every Member of the Committee who actually went to law school to provide me with the name of their constitutional law professor, and I would like to send their comments to their professor and ask their former professors to engage with them in a renewal of the course, because it really is quite alarming and frightening to me that this kind of discussion could occur in this year about our fundamental, basic constitutional law.
This bill is unconstitutional. If it passes, which it probably will not, it will be tossed by the court. But the discussion about this is enormously alarming and I think should frighten Americans everywhere.
Mr. Chairman, I yield the balance of my time to Mr. Delahunt from Massachusetts.
Mr. DELAHUNT. Mr. Chairman, I thank the gentlewoman.
I have to allay some of the concerns I heard from my dear friend on the other side of the aisle, Mr. King, about Massachusetts dictating their policy regarding marriage to the other States of the Union. That simply is inaccurate. It is not the case. Let me refer to you or let me quote to you certain excerpts from a brief recently filed by the chief law enforcement officer of the Commonwealth of Massachusetts, the attorney general, as well as excerpts from the Goodrich opinion which obviously is a focal point, if you will. So for those of you who are concerned about Massachusetts impacting policy in the definition of marriage in your States, I would respectfully request you to listen very carefully to the excerpts that I will quote.
` the argument made that legalization of same-sex marriage in Massachusetts will be used by persons in other States as a tool to obtain recognition of a marriage in their State that is otherwise unlawful is precluded by provisions of,' and it enumerates various sections of the Massachusetts general laws. The language used throughout the Goodrich majority decision recognizes that other States are entitled to reach their own conclusions about same-sex marriage and that nothing in Goodrich is intended to force the issue in or on other States. The Goodrich court carefully and repeatedly limited the reach of its decision to Massachusetts residents or citizens. Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach.
So please do not misunderstand the implications of this decision. Understand that there is a specific Massachusetts statute expressly according respect to other States' marriage laws. This is not the case. The Goodrich decision, the Massachusetts decision, will not implicate the policy of other States.
Chairman SENSENBRENNER. The gentlewoman's time has expired.
Let me make a suggestion. There are some Members who have obligations over the lunch hour. Most of this debate does not relate to the Baldwin amendment specifically. Because Members are here, I think it would be good comity to allow a vote on the Baldwin amendment now, the next amendment can be offered, and then the debate can continue.
Those in favor of the Baldwin amendment to the amendment in the nature of a substitute will say aye.
Opposed, no.
The noes appear to have it.
Ms. BALDWIN. Mr. Chairman, I request a rollcall.
Chairman SENSENBRENNER. A rollcall is requested and will be ordered.
Those in favor of the Baldwin amendment to the amendment in the nature of a substitute will, as your names are called, answer aye. Those opposed, no.
The Clerk will call the roll.
The CLERK. Mr. Hyde.
[No response.]
The CLERK. Mr. Coble.
Mr. COBLE. No.
The CLERK. Mr. Coble votes no.
Mr. Smith.
Mr. SMITH. No.
The CLERK. Mr. Smith votes no.
Mr. Gallegly.
Mr. GALLEGLY. No.
The CLERK. Mr. Gallegly votes no.
Mr. Goodlatte.
[No response.]
The CLERK.Mr. Chabot.
Mr. CHABOT. No.
The CLERK. Mr. Chabot votes no.
Mr. Jenkins.
Mr. JENKINS. No.
The CLERK. Mr. Jenkins votes no.
Mr. Cannon.
Mr. CANNON. No.
The CLERK. Mr. Cannon votes no.
Mr. Bachus.
Mr. BACHUS. No.
The CLERK. Mr. Bachus votes no.
Mr. Hostettler.
Mr. HOSTETTLER. No.
The CLERK. Mr. Hostettler votes no.
Mr. Green.
Mr. GREEN. No.
The CLERK. Mr. Green votes no.
Mr. Keller.
Mr. KELLER. No.
The CLERK. Mr. Keller votes no.
Ms. Hart.
Ms. HART. No.
The CLERK. Ms. Hart votes no.
Mr. Flake.
Mr. FLAKE. No.
The CLERK. Mr. Flake votes no.
Mr. Pence.
Mr. PENCE. No.
The CLERK. Mr. Pence votes no.
Mr. Forbes.
Mr. FORBES. No.
The CLERK. Mr. Forbes votes no.
Mr. King.
Mr. KING. No.
The CLERK. Mr. King votes no.
Mr. Carter.
Mr. CARTER. No.
The CLERK. Mr. Carter votes no.
Mr. Feeney.
Mr. FEENEY. No.
The CLERK. Mr. Feeney votes no.
Mrs. Blackburn.
Mrs. BLACKBURN. No.
The CLERK. Mrs. Blackburn votes no.
Mr. Conyers.
Mr. CONYERS. Aye.
The CLERK. Mr. Conyers votes aye.
Mr. Berman.
Mr. BERMAN. Aye.
The CLERK. Mr. Berman votes aye.
Mr. Boucher.
[No response.]
Mr. Nadler.
Mr. NADLER. Aye.
The CLERK. Mr. Nadler votes aye.
Mr. Scott.
Mr. SCOTT. Aye.
The CLERK. Mr. Scott votes aye.
Mr. Watt.
Mr. WATT. Aye.
The CLERK. Mr. Watt votes aye.
Ms. Lofgren.
Ms. LOFGREN. Aye.
The CLERK. Ms. Lofgren votes aye.
Ms. Jackson Lee.
Ms. JACKSON LEE. Aye.
The CLERK. Ms. Jackson Lee votes aye.
Ms. Waters.
Ms. WATERS. Aye.
The CLERK. Ms. Waters votes aye,
Mr. Meehan.
[No response.]
The CLERK. Mr. Delahunt.
Mr. DELAHUNT. Aye.
The CLERK. Mr. Delahunt votes aye.
Mr. Wexler.
[No response.]
Ms. Baldwin.
Ms. BALDWIN. Aye.
The CLERK. Ms. Baldwin votes aye.
Mr. Weiner.
Mr. WEINER. Aye.
The CLERK. Mr. Weiner votes aye.
Mr. Schiff.
Mr. SCHIFF. Aye.
The CLERK. Mr. Schiff votes aye.
Ms. Sanchez.
Ms. SANCHEZ. Aye.
The CLERK. Ms. Sanchez votes aye.
Mr. Sensenbrenner.
Chairman SENSENBRENNER. No.
The CLERK. Mr. Sensenbrenner votes no.
Chairman SENSENBRENNER. Are there Members in the Chamber who wish to cast or change their vote?
The gentleman from Virginia, Mr. Goodlatte.
Mr. GOODLATTE. No.
The CLERK. Mr. Goodlatte votes no.
Chairman SENSENBRENNER. If there are no further Members in the Chamber who wish to cast or change their vote, the Clerk will report.
The CLERK. Mr. Chairman, there are 13 ayes and 20 noes.
Chairman SENSENBRENNER. And the amendment is not agreed to.
[12:30 p.m.]
Chairman SENSENBRENNER. Let me talk a little bit about scheduling. After this announcement the Chair will ask if there are any more amendments. I imagine there will be another amendment or two. We will continue debating those amendments until the votes are called on the floor. If we get talked out before the votes are called on the floor, the Committee will recess at that point. I don't think that is a possibility, but I am just saying so to put it on the record. When we have the votes on the floor, and it is anticipated that there will be four votes on the floor, the Committee will recess. We will come back promptly 30 minutes after the conclusion of the last vote on the floor. Everybody clear on that? The conclusion of the last vote on the floor. So there will be no further votes between now and the time the bell rings to summon us over to the floor. Come on back probably 30 minutes after the conclusion of the last vote on the floor, and we will then resume consideration and stay in session until we complete this bill today. So, again, no votes until after the recess for the votes and the lunch hour.
Are there further amendments?
Ms. JACKSON LEE. I have an amendment at the desk.
Chairman SENSENBRENNER. Okay. The gentlewoman----
Ms. JACKSON LEE. This is a handwritten one.
Chairman SENSENBRENNER. The clerk will report the handwritten one.
Ms. JACKSON LEE. Thank you, Mr. Chairman.
The CLERK. Amendment to the amendment in the nature of a substitute to H.R. 3313 offered by Ms. Jackson Lee. Strike all after the enacting clause and insert the following: Section 1. Short title. This act may be cited as the Marriage Protection Act of 2004. Section 2. Limitation of jurisdiction. A----
Chairman SENSENBRENNER. Without objection, the amendment is considered as read, and the gentlewoman from Texas will be recognized for 5 minutes.
[The amendment to the substitute offered by Ms. Jackson Lee follows:]
Ms. JACKSON LEE. I thank the Chairman.
Mr. Chairman, this--as I have listened to the debate, and particularly the debate on the gentlelady's very thoughtful amendment that almost passed previously, I want to again refer my colleagues--so many of them have been utilizing the Constitution and the Marbury v. Madison and a number of other citations and suggesting a variety of opinions based around their own interpretation. I would like to just simply draw my colleagues' attention to the language in 1632, and it reads as follows: Courts created by an act of Congress shall have all jurisdiction necessary and the Supreme Court shall have all appellate jurisdiction necessary to hear or decide any question pertaining to the interpretation of or the validity under the Constitution of all cases in law and equity arising under this Constitution, the laws of the United States and treaties.
I cite partially from Article III, and I do that because I cannot believe that Members of this Committee would sit and attempt to undermine the very framework in which we guide ourselves in the three branches of Government. I have heard language from my distinguished friend suggesting we draw a line, drawing a line. What I would offer to say to my colleagues is this amendment tracks the Constitution and gives authority to the appellate courts by restating the provisions in the Constitution, and simply says that we stand by that document and the rightful role of the Federal courts.
Drawing a line means setting precedent in this body, which means for every legislative initiative, every act in the State, we will take it upon ourselves to draw the line. Mr. Chairman, I believe that would wreak havoc on any suggestion that there is a democracy in this country.
I have also heard a variety of expressions of allowing loving relationships and others who would challenge whether or not the idea of relationships between individuals not of differing sexes or differing sex would then educate or suggest to embryonic status, or those that are embryos and born, in the first 3 or 4 hours of their life that they would then choose to be one or the other. I am not a scientist, sociologist, nor do I think there are many in this room, psychologists, that can give me a definitive position on a different lifestyle, and thereby I have no information as to what and who would make changes in their life on the basis of this particular statutory law that we are deciding. I don't think anyone in this body does. And so, therefore, to bring in our social and religious perspective to this room, I don't disrespect your religious or political perspective, but you are utilizing that to undermine the infrastructure of Government, the three branches of Government and the constitutional underpinnings or the constitutional language of the Article III courts.
What I see in this particular statute that has been offered by my good friend from Indiana is the drawing of the line on every single social issue, every single political issue, every single contractual issue that comes before us. That means we will write legislation because we disagree with the court's interpretation on every matter that occurs in States, in law and in equity.
I believe that is wrong, and so this particular amendment speaks to that question by simply suggesting that the appellate courts--that Article III courts retain their rights under Section 2 of Article III, and also to refer my colleagues to this language, that these courts would then have the authority to address matters, controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof and foreign states, citizens or subjects.
I frankly do not understand why we would offer to utilize this particular amendment to begin to unravel a system that we have utilized and has worked. I conclude my remarks by saying this: As I opened in the general debate, that there was a Supreme Court decision that took place in 2000. I listened keenly and carefully, but at that time that that decision was rendered----
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress From the State of Michigan, and Ranking Member, Committee on the Judiciary
I rise in support of this amendment, which would preserve Supreme Court review of the Defense of Marriage Act.
In their zeal to score political points in an election year, the President and conservative Republicans have raised the issue of same sex marriage. They seem not to care that this issue is more likely to divide the nation than unite it.
Because they know they cannot pass a constitutional amendment to ban same sex marriage, they are trying to prevent court review of their other discriminatory law, the 1996 Defense of Marriage Act.
This shows the Republicans are afraid that a law they passed eight years ago is unconstitutional. What is the Republican remedy? It is not to repeal the unconstitutional law but to block court review of it. That is typical--if people won't like your dirty laundry, don't let it get aired.
I think my colleagues on the other side of the aisle would support this because, in the Winter of 2000, they strongly believed in the abilities of the Supreme Court.
This amendment also would cure a constitutional problem with the underlying bill. The Constitution and Marbury v. Madison state clearly that it is the province of the courts to interpret and review federal laws. The Constitution does not say Congress can prevent the Supreme Court from reviewing discriminatory and bigoted laws.
I urge my colleagues to vote `Yes' on this amendment.
Chairman SENSENBRENNER. The gentlewoman's time has expired.
Ms. JACKSON LEE- no one referred to the Supreme Court as the crown. I simply ask my colleagues to support this amendment and restore us back to the three branches of Government and the Constitution.
I yield back.
Chairman SENSENBRENNER. The Chair recognizes himself in opposition to the amendment.
The way this amendment is drafted is that it goes much further than dealing with the Defense of Marriage Act or issues relating to marriage, but it gives unlimited jurisdiction to the Federal courts under all laws of the United States, the Constitution and treaties whether this relates to DOMA or anything relating to marriage, whether it is same-sex marriage or opposite-sex marriage. It involves everything.
Let me just give a partial list of major legislation that limited court jurisdiction that was passed in the last Congress. We have talked extensively about Senator Daschle's language protecting the Black Hills Forest from the National Environmental Protection Act and other environmental laws. The Terrorism Risk Insurance Act that was passed after 9/11 prevented judicial review from a certification of or a determination that something was an act of terrorism, which triggered the coverage under this law. The Small Business Liability Relief and Brownfields Revitalization Act, the Department of Justice Authorization Act, the Andean Trade Promotion and Drug Eradication Act, the American Service Members Protection Act, the Public Health Security and Bioterrorism Response Act, the Aviation Security Act, to expedite the construction of the World War II memorial in the District of Columbia, and the Small Business Investment Company Act--Amendments Act of 2001. Now, that is these laws, and this was just in the last Congress, but have the restrictions or limitations on judicial review been overridden by the gentlewoman's amendment?
Ms. JACKSON LEE. Would the gentleman yield?
Chairman SENSENBRENNER. I will yield in a second.
So this amendment is drafted in a far broader manner where the Congress, in many areas that has nothing do with same-sex marriage or the Defense of Marriage Act, has made a determination to try to expedite action by limiting judicial review or making an action not subject to judicial review whatsoever. For this reason this amendment should be rejected, and I now yield to the gentlewoman from Texas.
Ms. JACKSON LEE. I thank the distinguished gentleman for recounting a number of legislative acts that support my position in the three branches of Government. We do have checks and balances. I would offer to the distinguished Chairman that none of the laws that he has recited prevents a constitutional review by the courts of constitutional questions that would arise under those legislative initiatives. All my amendment does is restate the fact that the courts under Article III have their rights, appellate and otherwise, to review questions that come before them. It is not broad to the extent that that is the bottom line.
Chairman SENSENBRENNER. Reclaiming my time. This is not the way the gentlewoman has drafted her amendment. The grant of unlimited jurisdiction on all issues relates to all cases of law and equity arising under this Constitution, the laws of the United States and treaties. So, again, it is a much broader amendment that goes far beyond the topic of same-sex marriage, and I believe it ought to be rejected.
Mr. NADLER. Mr. Chairman----
Chairman SENSENBRENNER. The gentleman from New York.
Mr. NADLER. Mr. Chairman, let me say that I support the amendment. Having said that, the balance of my comments will be devoted to the bill in chief, and I simply want to observe that despite all the sentiment drawing on both sides of the aisle, if you really read this bill and consider it carefully, the effect it will have will be zero. This bill will do nothing whatsoever on this controversy.
And the reason I say that is the following: Imagine how this will come--how this bill would operate in practice. Imagine how this whole situation could come up in court. Some gay couple gets married in Massachusetts and moves, let's say, to New York. Some controversy arises. One of them dies intestate, and a controversy arises over the intestacy, and a New York surrogates' court decides either that the marriage was valid in New York because New York does not have a public policy objection and recognizes the Massachusetts marriage, or the New York surrogates' court decides that the marriage is not valid because New York has a public policy objection and will not recognize the Massachusetts marriage. Those are the two options.
In the first case, if the New York court recognizes the marriage and says, we do not have a public policy objection, there is no Federal case whatsoever, and this whole thing is irrelevant. In the other possibility, where the New York court says that New York's public policy objects to gay marriage, and therefore New York will not recognize the Massachusetts marriage, the losing party would then go to Federal court and claim that New York's public policy objection, which normally States have a right to have a public policy objection under full faith and credit enforcement, but in this case the Federal claim would be that New York's public policy objection cannot be recognized because it violates the equal protection clause of the Federal Constitution. So the question before the Federal court would be whether or not New York's refusal to recognize the Massachusetts marriage because of its public policy exception violates the Federal equal protection clause or not. That decision is up to the Federal court. This bill has nothing to do with that.
Now, someone might try to interpose DOMA and say, well, DOMA says that the State doesn't have to recognize what Massachusetts did, to which the reply would be, well, we think they do because of the equal protection clause, with or without DOMA. So DOMA is irrelevant because either the equal protection clause overturns the public policy exception the State has applied, or it doesn't. DOMA doesn't add to that and doesn't detract from that. So this bill, by saying that the Federal courts cannot adjudicate the constitutionality or meaning of DOMA, is irrelevant because DOMA itself is irrelevant to that question.
Mr. HOSTETTLER. Would the gentleman yield?
Mr. NADLER. Yes, I will.
Mr. HOSTETTLER. I don't believe the DOMA is irrelevant because DOMA, likewise, exercises an explicit and exclusive constitutional prerogative with regard to full faith and----
Mr. NADLER. Reclaiming my time. Being that--even given that fact, either the public policy exception of the State is valid, in which case DOMA is unnecessary, because we recognize the public policy exception of the State, or the Federal courts would hold the public policy objection invalid as in violation of equal protection. If the courts would hold that, DOMA can't fix that because you can't overturn a constitutional problem with a statute, even if the statute by itself is valid, because--so even if Congress had power to enact DOMA, which I don't question, even if the Congress had power to enact DOMA, which you say it did, and I agree, the fact is if the public policy exception violates the equal protection clause, then DOMA as applied in that context would also violate the equal protection clause. But in any event, it wouldn't be applied.
So the point is this legislation, saying that you cannot--that the Federal courts cannot adjudicate the validity of DOMA, doesn't deal with the question that it purports to deal with, because the question would not be DOMA, the question would be whether the State's public policy exception violates the equal protection clause or not, and that--the fact you cannot strip the courts of the ability to adjudicate, nor does this bill purport to do that.
Chairman SENSENBRENNER. The gentleman's time has expired. The question is on the----
Mr. HOSTETTLER. Mr. Chairman.
Chairman SENSENBRENNER. The gentleman from Indiana.
Mr. HOSTETTLER. I move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. HOSTETTLER. The gentleman kept referring to a, quote, public policy exception, end quote, which is, my understanding, a construct of the Federal judiciary. And what you are asking us to consider is that this public policy exception, quote, public policy exception, end quote, that has been constructed by the court is going to be adjudicated by the court vis-a-vis the equal protection clause that the court has created the doctrine concerning. And so what you are saying is that, in effect, there is no full faith and credit provision that could ever be enacted by Congress.
Mr. NADLER. Would the gentleman yield?
Mr. HOSTETTLER. Just 1 minute and then I will yield.
There is no full faith and credit provision that the Congress could ever enact and the President sign into law that the court could not overturn, because you have two constructs that are created by the court to judge a constitutional prerogative of the Congress.
I yield to the gentleman.
Mr. NADLER. No, I think you have it backwards. The public policy exception is a construct of the court.
Mr. HOSTETTLER. Yes.
Mr. NADLER. But remember, the people who are opposed to gay marriage are afraid that if Massachusetts recognizes the gay marriages, the full faith and credit clause may force every other State to do so. The public policy exception says, wait a minute. The full faith and credit--and this is a construct of the courts for the last 150 or 200 years--says that the State need not--under the full faith and credit doctrine need not recognize an action of another State if it violates the public policy of the court. Therefore, the State need not recognize the gay marriage.
Now, the question then is in order to protect the State against recognizing a gay marriage, which you would want to do, but I would not want to do, the question, therefore, one would say that the public policy exception is all that is necessary. And it is all that is necessary unless the courts would hold that its application in this case violates the equal protection clause. That is the only question that would be before the court. DOMA and, therefore, this bill would never arise.
Mr. HOSTETTLER. Reclaiming my time. Once again, there are two constructs of the court. And I will remind the gentleman that in Lawrence v. Texas the majority opinion was not an equal protection argument. It was a due process argument. Equal protection was a concurring opinion by one Justice, Sandra Day O'Connor. And so what you are saying is that equal protection, due process, any other construct of the court, that they can--that they see in the Constitution that they want to use as the excuse of the day to overturn any full faith and credit provision that Congress has enacted according to our Article IV, Section 1, there is nothing that we could do. And so that is why we must assert our constitutional authority.
Mr. NADLER. Would the gentleman yield?
Mr. HOSTETTLER. I have yielded quite a bit of time. Let me just try to make my point.
What you are saying, that because the Court has created a, quote, public policy exception, end quote, and because the Court applies equal protection to whoever it wants to and due process to whomever it wants to, and any other construct that they can find two or three words in the Constitution that they want to apply to any particular provision, that you have said, just as Dr. Gerhardt said here a couple of weeks ago, that Congress can do nothing. He couldn't tell us if Congress could repeal a previous law. He couldn't tell us if Congress could impeach someone without any impediment by the Court. He couldn't even say that--with clarity that the President could pardon someone after they had been convicted and their conviction upheld by the Supreme Court.
You are telling us, and Dr. Gerhardt has told us, that Congress can only do--regardless of the explicit and exclusive authority all over the Constitution, Congress cannot do those things that the court doesn't want it to do.
Mr. NADLER. Now would the gentleman yield?
Mr. HOSTETTLER. And so that is why--that is why the idea of a public policy exception, a construct of the court, is not a construct of the Constitution.
Ms. JACKSON LEE. Would the gentleman yield?
Mr. HOSTETTLER. And that gives us the authority to deal in this situation with regard to the Defense of Marriage Act.
Mr. NADLER. Now would the gentleman yield?
Mr. HOSTETTLER. And it gives us the authority to decide the jurisdiction of the inferior Federal courts and the Supreme Court.
And I yield to the gentlelady from Texas Ms. Jackson Lee.
Ms. JACKSON LEE. I just want to say one point. You are suggesting that we cannot at any time have appellate authority. I yield to--I yield back.
Chairman SENSENBRENNER. The gentleman's time has expired. The question is on the Jackson Lee amendment to the amendment in the nature of a substitute.
Mr. SCOTT. Mr. Chairman, I move to strike the last word
Chairman SENSENBRENNER. The gentleman from Virginia is recognized for 5 minutes.
Mr. SCOTT. I yield to the gentleman from New York.
Mr. NADLER. Thank you. Thank the gentleman for yielding. I think the gentleman Mr. Hostettler simply doesn't understand the key point. Whatever he wants to say about construct, et cetera, the key point is very simple. The issue that would be before a Federal court is whether--the only issue that would be before a Federal court is whether a State's refusing to enforce a gay marriage or recognize a gay marriage from a different State violates the equal protection or perhaps the due process clause of the Constitution.
I maintain that under the case law, Congress would have no power to strip the Federal courts of the ability to adjudicate that question. You have to give a Federal forum for a Federal constitutional right.
But that question aside, that doesn't arise under this bill because this bill doesn't deal with that. This bill simply says you can't adjudicate questions arising under DOMA. The question would not arise under DOMA. Therefore, this bill is irrelevant, whether what you say is true or not.
I yield back.
Mr. HOSTETTLER. Would the gentleman from Virginia yield for a question?
Mr. SCOTT. I yield.
Mr. HOSTETTLER. I thank the gentleman for yielding, and I ask the gentleman from New York a question, and that is very simply this: Do you believe that according to the Constitution or according to Marbury v. Madison or whoever you want to quote, whatever source you want to quote, that the Supreme Court has the authority to overturn any act of the United States Congress passed by Congress, signed into law by the President? Do you believe that they have the authority to invalidate any act that they deem repugnant, in Marshall's words, quote, repugnant to the Constitution, end quote; do you believe that?
Mr. NADLER. If they believe it is repugnant to the Constitution, yes. That was Marbury v. Madison, and that has been the constitutional history of this country for the last 200 years.
Mr. HOSTETTLER. I thank the gentleman.
Mr. WEINER. Will the gentleman yield?
Mr. SCOTT. I will yield.
Mr. WEINER. You know, I am actually eager to know what the multiple choice part of that question would be. I mean, who are the other options? I mean, what are the other choices that we are presented with? Is it going to be like American Idol, or are we going to do it that way, just have people vote in on their phones?
Yeah, this is an imperfect system that the Constitution was strangely silent on, and we allowed men of good faith to come up with--hopefully come up with a great idea, and I think John Marshall--and we are going to vote on a resolution today creating a coin in his honor, and in the very text of the resolution, it refers to the things that we praise him for in the resolution. If you will permit me, I will read--this is the resolution we are voting on today. It is a very long list of sponsors. You may be among them.
Under his leadership, the Supreme Court of the United States gave shape to the fundamental principles of the constitution, most notably the principle of judicial review.
The gentleman to your immediate left probably wrote this. This is his resolution.
So the answer is I would be eager to hear if there is another choice that we can be presented with, because it certainly isn't going to be Congress to say what Congress--and I would make one further point that seems to get lost here. Let us remember the courts are created as the place to protect the minority. The majority has the Legislature. The majority has the executive. Majority has the power to amend the Constitution. The minority has only one place, and that place is the courts, and we feel so--that that is so important that the minority have that rule, the only way to have them trump--and I have to tell you, I have heard so much today about the overreaching judiciary. You know, on our side we haven't won one of these cases in a while. We had an overreaching--we should be the ones complaining about it. We had the guys across the street choose our President incorrectly. We should be the ones complaining. But you know what? We are taking our lumps. Marbury v. Madison was soundly decided. We have no other choice. We have to leave it to men and women of good faith to interpret the law. And the overreaching judiciary, they are overreaching in your favor. It should be us complaining about all of this, except we are here defending them, and Lord knows why.
And I yield back.
Chairman SENSENBRENNER. The time still belongs to the gentleman from Virginia. The question is on the Jackson Lee amendment to the amendment in the nature of a substitute. Those in favor will say aye.
Opposed, no.
Ms. JACKSON LEE. Ask for a rollcall.
Mr. SENSENBRENNER. The noes appear to have it.
Ms. JACKSON LEE. I ask for a rollcall, Mr. Chairman.
Chairman SENSENBRENNER. Pursuant to Committee rule 2(h)1, the Chair will postpone the rollcall on this amendment until after we reconvene following the votes.
Pursuant to subsection 2, the Chair will notify Members that this vote will take place following the first rollcall on an amendment that will be voted on after the recess.
Are there further amendments?
Mr. SCOTT. Mr. Chairman.
Chairman SENSENBRENNER. The gentleman from Virginia Mr. Scott.
Mr. SCOTT. Mr. Chairman, I have an amendment at the desk.
Chairman SENSENBRENNER. The clerk will report the amendment.
The CLERK. Mr. Chairman, I don't have an amendment.
Chairman SENSENBRENNER. The gentleman from Virginia will supply the clerk with an amendment.
The CLERK. Amendment to the amendment in the nature of a substitute to H.R. 3313 offered by Mr. Scott of Virginia. Add at the end the following new section.
Mr. SCOTT. Mr. Chairman, I move that the reading of the amendment be waived.
Chairman SENSENBRENNER. Without objection, so ordered.
[The amendment to the amendment in the nature of a substitute offered by Mr. Scott of Virginia follows:]
Chairman SENSENBRENNER. And I think this is a good time to take a recess, so the Committee will be recessed until 30 minutes following the conclusion of the last of the series of votes that will be called on the floor within the next 15 to 30 minutes. The Committee stands in recess.
[Recess.]
Chairman SENSENBRENNER. The Committee will be in order. A working quorum is present.
When the Committee recessed earlier today, pending before the Committee was a motion to report the bill, H.R. 3313, favorably to the House. An amendment in the nature of a substitute was offered by the Chairman. The gentleman from Virginia Mr. Scott offered an amendment to the amendment in the nature of a substitute, which--which the reading was dispensed with, but the gentleman from Virginia had not been recognized in support of his amendment.
The gentleman from Virginia is now recognized for 5 minutes in support of his amendment.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Chairman, this amendment would allow the prevailing party in the case against the United States involving H.R. 3313 to recoup reasonable attorney's fees including litigation expenses and costs as part--if part or all of H.R. 3313 is found unconstitutional by the presiding court, as many of us expect it will.
The laws of this country traditionally protect people from losing constitutional rights they currently possess. Federal courts are empowered to hear cases and circumstances in which those rights have been infringed upon. This bill is an undisguised attempt to prevent Federal courts from hearing cases relating to rights, benefits and protections that are guaranteed under our Constitution, including the due process and equal protection clause of the Constitution.
Within our constitutional framework, although Congress is expected to follow the Constitution, it is not for this Congress to make the final decision as to what is constitutional and what is not. Since Marbury v. Madison in 1803, I guess, until the gentleman from Indiana spoke earlier today, there has been a consensus that the United States Supreme Court would be the final arbiter of what is constitutional and what is not.
On June 24, the Constitution Subcommittee held a hearing on the issue of limiting Federal court jurisdiction to protect marriage for the States. Michael Gerhardt, professor of law at William and Mary Law School, testified that while Congress does have the authority to regulate Federal jurisdiction, the power is not unlimited, and that an act to totally prevent the Federal courts from ensuring that a State complies with the Constitution will be unconstitutional. He also testified that it is unconstitutional for the Congress to withdraw jurisdiction in such a way that eviscerates the Supreme Court's basic function in deciding cases arising under the Constitution and ensuring finality and uniformity in the interpretation and enforcement of Federal law.
This bill violates that principle and attempts to prevent Federal courts from deciding cases involving the Defense of Marriage Act that call into question the full faith and credit clause as well as provisions of the 5th and 14th amendments to the Constitution. It thereby usurps the court's ability to create a uniform standard for States to follow, and instead allows each State to interpret and decide whether to grant or deny constitutional rights on an individual State basis.
Professor Gerhardt was not the only witness to caution against the drastic step of court-stripping. Martin Redish, professor of law at Northwestern Law School, agreed that there are limits to the power of Congress to limit Federal court jurisdiction, including the due process clause, equal protection, and the concept of separation of powers. Professor Redish also testified that Congress cannot remove Federal jurisdiction in a discriminatory manner, as this bill obviously does.
Mr. Chairman, this bill violates many constitutional principles. If it were to be found constitutional, there would be no prohibition against boilerplate language stuck in every bill we pass stripping judicial review from every bill that we consider, on each statute that would be passed. If it is constitutional, I would frankly be glad that nobody thought of that before 1954 where they could have stripped the court from jurisdiction from reviewing segregation in public schools; or before the 1960's, when activist judges required Virginia to recognize racially mixed marriages. Since the Dred Scott decision was mentioned earlier today, I am glad that no one stripped the Court from the possibility of reversing itself on that case, or Plessy v. Ferguson, the separate but equal decision.
Mr. Chairman, since we defeated the Baldwin amendment, I am glad no one thought of allowing the States, State courts and State legislatures to decide for themselves the constitutional issues involving civil rights. If it is constitutional, Mr. Chairman, some States will rule that DOMA is, in fact, unconstitutional; other States, it is constitutional because of the public policy exception applies. In fact, the prior hearing, Judge Robert Bork implied that the full faith and credit may apply to marriages and civil unions whether or not the Musgrave amendment may pass. If this bill--but maybe not to marriages if the amendment passes, but certainly to civil unions. So if this bill passes, there will be no Federal rule. Some States will adopt full faith and credit principles; others will not. A Massachusetts or Vermont couple moving to another State may have their relationship recognized in some States and not in others.
Mr. Chairman, I ask for 1 additional minute.
Chairman SENSENBRENNER. Without objection.
Mr. SCOTT. Mr. Chairman, this bill violates many constitutional principles and undermines the credibility of our system of Government for those reasons. And therefore, all of that said, if we pass this law and force someone to challenge it, that person should not have to pay out of his or her pocket to prove the unconstitutionality of our actions.
Similar attorney's fees provisions exist in other areas of the laws where it has been necessary to file suit to vindicate civil rights in employment cases and other civil rights actions. For example, Federal law allows the court in its discretion to award reasonable attorney's fees to a prevailing party in an action brought pursuant to the Americans with Disabilities Act. Likewise, we should not force any American to pay exorbitant costs associated with litigation in order to have a court rule that this thing is unconstitutional.
For all of these reasons, Mr. Chairman, I ask my colleagues to support the amendment.
Chairman SENSENBRENNER. The gentleman from Indiana Mr. Hostettler.
Mr. HOSTETTLER. Move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. HOSTETTLER. Thank the Chairman.
Mr. Chairman, I rise in opposition to the Scott amendment. First, this amendment applies to cases brought against the United States. This bill only applies to the part of DOMA that states no State shall be required to accept an out-of-State same-sex marriage license. In any case brought to challenge the constitutionality of this bill, the defendant would be the entity granting or not granting recognition to a particular marriage. States and not the United States grant marriage licenses in this country. So the United States would not be the proper party.
Second, even if this amendment were made to apply to proper defendants, this amendment would allow Federal courts to not only define the limits of their own power, but it would allow Federal courts to tax the States, because the States would be the very victims of the Federal court's usurpation of authority. And so I oppose the amendment, Mr. Chairman.
At this time, Mr. Chairman, I would like to ask unanimous consent that section 2 of a report, a CRS report for Congress, Congressional Checks on the Judiciary, would be entered into the record.
Chairman SENSENBRENNER. Without objection.
[The material referred to follows:]
Mr. HOSTETTLER. And I will read from that, because I believe that we need to put the case Marbury v. Madison, especially this day when we will be voting on a commemorative coin for the former Chief Justice, in proper context, in that Lewis Fisher, who is senior specialist in separation of powers for the Government Division of the Library of Congress, says, quote, Chief Justice Marshall's decision in Marbury represents what many regard as the definitive basis for judicial review over congressional and Presidential actions.
But Marshall's opinion stands for a much more modest claim. He stated that it is, quote, emphatically the province and duty of the judicial department to say what the law is, end quote. So it is that Congress and the President are also empowered under the Constitution to, quote, say what the law is, end quote.
Marshall's statement can stand only for the proposition that the court is responsible for stating what it thinks a statute means, after which Congress may enact another law to override the court's interpretation. The court states what the law is on the day the decision comes down. The law may change later. Several examples of this institution in the interplay will be identified in this report.
Fisher goes on to say, quote, it is evident that Marshall did not think he was powerful enough in 1803 to give orders to Congress and the President. He realized that he could not uphold the constitutionality of section 13 of the Judiciary Act of 1789 and direct Secretary of State James Madison to deliver the commissions to the disappointed would-be judges.
Now why did he know that couldn't happen? The reason is this: President Thomas Jefferson and Madison would have ignored such an order. Everyone knew that, Fisher says, including Marshall. As Chief Justice Warren Berger noted, quote, the Court could stand hard blows, but not ridicule, and the alehouses would rock with hilarious laughter had Marshall issued a mandamus that the Jefferson administration ignored. And so we thinking much more highly of this decision of Marbury v. Madison than we ought to think.
And I will close, Mr. Chairman, by quoting from a distinguished former jurist that said in a Pulitzer Prize-winning book of Albert Beveridge, quote, I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the Legislature. A reversal of those legal opinions deemed unsound by the Legislature would certainly better comport with the mildness of our character than would a removal of a judge who has rendered them unknowing of his fault, end quote.
The question is who is the heretic that suggested that there is appellate jurisdiction in the Legislature for the Supreme Court? Well, it was a gentleman--it was actually in this book, a biography of a gentleman by the name of John Marshall, who said in a letter to Justice Samuel Chase that, in fact, the Legislature, the Congress, is the appellate jurisdiction for a, quote, opinion deemed unsound by the Legislature.
Mr. Chairman, I oppose this amendment, and I would ask my colleagues to support the underlying bill so that we do not have to deem a future decision by the Supreme Court unsound, and I yield back the balance of my time.
Chairman SENSENBRENNER. The gentleman from North Carolina Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman. I move to strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for 5 minutes.
Mr. WATT. Thank you, Mr. Chairman.
I rise in support of Mr. Scott's amendment. Ithink there is going to be, I suspect, a substantial amount of litigation associated with this provision if it passes, and it would be a shame that private litigants would have to try to sort this out without benefit of having their fees paid just because we are here engaged in a political act that substantially undermines a constitutional principle.
Having said that, I would like to ask the Chairman a question that has been raised to me, and I am not sure that I have a good answer to it. And I think the Chairman is probably better prepared to--much better prepared to answer that question than Mr. Hostettler, since it is the Chairman's substitute that we are dealing with.
Under the bill, I am wondering whether a defendant could remove a case, any kind of case, under this statute to the Federal courts, and whether, given the language of the amendment in the nature of a substitute, the Federal courts would then have to dismiss the case; and if under those circumstances the case was dismissed, whether that would deprive a litigant of any determination either by a Federal or State court of constitutionality. And I will yield to the gentleman.
Chairman SENSENBRENNER. Will the gentleman yield?
Mr. WATT. Yes, sir.
Chairman SENSENBRENNER. I am not intimately familiar with the removal statute, but if the Federal court does not have jurisdiction over the case, my belief is that the Federal court would be constrained to deny the motion to remove, and thus the case would continue to be pending in the State court.
Mr. WATT. I hear--and I guess that makes a lot of sense, except that on line 11 of the substitute, you say that no court or the Supreme Court on an appeal can hear or decide any question pertaining to the interpretation of. So if the case were tried to be removed, who would make a determination of even the ability to remove it under those circumstances? And if the Court decided that----
Chairman SENSENBRENNER. Will the gentleman yield?
Mr. WATT. Wouldn't it be deciding the ultimate constitutionality, or would that be improper, or could it go back to the State court to even have a State court----
Chairman SENSENBRENNER. My understanding is that the removal statute is a discretionary statute.
Mr. WATT. Well, somebody has to exercise the discretion is the point I am trying to make. Who under these circumstances would exercise that discretion?
Chairman SENSENBRENNER. Well, it would be the Federal district judge that would determine if the matter was not removable under the Federal law because the Federal district court did not have jurisdiction.
Mr. WATT. Wouldn't that be any question pertaining, or would it not? I just raise that as an academic proposition.
Chairman SENSENBRENNER. Well, if the gentleman will yield further. Say there is a suit that is filed in the Federal district court that the court----
Mr. WATT. I am talking about a suit that is filed in the State court and then a motion to remove it filed to the Federal court. Who would then decide that if under the statute you are saying----
Chairman SENSENBRENNER. If the gentleman will yield, it would be the Federal district judge, as a Federal district judge would decide a motion to dismiss a case that was originally filed in the Federal court if the court had no jurisdiction over it. There would be a motion to dismiss, and the court would have to grant it.
Mr. WATT. I will yield to Mr. Scott.
Mr. SCOTT. I would ask the same question in a slightly different way. The case may have a lot of different parts to it, and if it is removed, the Federal court would not be able to rule on any of this part of it, would have the rest of the case before it. So if the plaintiff's argument is that the law is unconstitutional the--that the DOMA is unconstitutional, or constitutional, you don't get to review that, and you lose, most of the rest of the case is sitting there. I don't know what happens to it.
Mr. WATT. Well, I think that is the question I am raising. I--it is one thing to say that the Federal courts and the Supreme Court don't have jurisdiction to decide a constitutional question, but I think we may be setting up a trap here where no court, not even the State courts, end up.
Chairman SENSENBRENNER. The time of the gentleman from North Carolina has once again expired.
For what purpose does the gentleman from New York seek recognition?
Mr. WEINER. To briefly strike the last word.
Chairman SENSENBRENNER. The gentleman is recognized for a brief 5 minutes.
Mr. WEINER. Just in response to my good friend from Indiana, and it seems mysterious to me about why in the context of this amendment you truly want to relitigate Marbury v. Madison. But if we are going to, let us not learn the wrong lessons.
The experience in Marbury v. Madison, and one of the reasons that we honor John Marshall today on the floor of Congress, was that in the same decision he ruled that that court ruled they had the authority to overrule congressional acts, but also demonstrated something else that the present Supreme Court hasn't, which is that sometimes you use restraint by not doing so. And by not striking down the Judiciary Act of 1789, they showed restraint.
Now, the question that you continue to raise is should this be the way it is done. And maybe it is not. I would argue it is the most settled of settled law, the most settled, because, frankly, without this interpretation and without this ruling, virtually there is no place that the buck stops.
And you posited or you read from someone's article exactly the way the system works. If Congress has a law stricken down, they ultimately do have the last word in a strange way. They can go back--we can go back and change the law and change it again and keep trying. I mean, for those of you who are familiar with the debate over late-term abortion, you know that is exactly what this panel does every 6 months, get struck down. You change the words, you go back, you do it again. It serves their political needs, but it also is an exercise for even the most rudimentary student of the Supreme Court for how the system works.
Yeah, we can keep trying, we can keep trying, and that is the example that whoever's article you read from was talking about; that if you are really concerned about judicial overreaching, you can go back and go back. But at the end of the day, the threshold test of whether something is violative of the Constitution of the United States of America only can be handled one of two ways: The courts rule that it is or is not, or an overwhelming majority of American citizens change the Constitution. Those are the only two choices that we have.
If you want to create a third choice, which is Congress gets to do it without judicial review, you will be rolling back 201 years of jurisprudence in this country that has, in many cases, I am sure you would agree, served your interests well. Sometimes it hasn't, but it is the only option that we have.
We have to leave this to smart hopefully, judicious hopefully, restrained hopefully men and women, flesh and blood, to finally say, look, you did the best you could, but, no, you didn't pass constitutional muster here.
It is remarkable to me that in the context of this bill you freely admit you want to relitigate Marbury v. Madison. I would be surprised if you got 10 votes on the floor of Congress for the idea that Marbury v. Madison was wrongly settled law. I mean, where does that leave us? That leaves us with the scenario where conceivably the Supreme Court can choose one President, Congress can choose a different President, and who settles the dispute? And you have a constitutional crisis.
John Marshall was brilliant. His decision that you deride was a brilliant compromise. It was a way to get out from under the problem of the political fight that was going on at that time between the Federalists and the Republicans. It was a way to answer this question about who is in charge, and it has served this country remarkably well; so well, in fact, that today I was proud to cast a vote to dedicate a coin in his honor in a piece of legislation authored by the good gentleman to your left.
It was really a master stroke, and it reminded us of something else. It reminded us, I say to the gentleman from Indiana and my colleagues on the Majority, you win some and you lose some. There is nothing about this deal that says you have to win every single one. You know, you have won some very important cases recently with a court that has become increasingly conservative. It doesn't mean you win every single case. You are going to lose a couple. You are going to lose some.
And we all essentially buy into this, and we teach in constitutional law classes, in high school classes about what it is in that building across the way with the nine pillars, what they do there. What they do there is take work that we do, with all of our best instincts, and they decide when it comes running up against that document called the Constitution whether or not we have passed a basic threshold. They do it. Sometimes they get it wrong. Sometimes they get it right. But it is, I reiterate, the only available system that we have. And of all of the available worlds, it is the best of all available worlds, and I am----
Chairman SENSENBRENNER. The gentleman's brief 5 minutes has expired.
Ms. JACKSON LEE. Mr. Chairman.
Chairman SENSENBRENNER. The gentleman from Alabama Mr. Bachus.
Mr. BACHUS. I thank the Chairman.
Mr. Chairman, I would first like to--I move to strike the last word.
Chairman SENSENBRENNER. Gentleman is recognized for 5 minutes.
Mr. BACHUS. Mr. Chairman, I am that famous man to your left, I think, that he keeps referring to that is going to bring the John Marshall coin bill to the floor later this afternoon, and I want the record to show that I will be honoring Justice Marshall. I will not be marrying him. So--and with that----
Mr. WEINER. Imagine my relief.
Mr. BACHUS. Thank you.
Ms. JACKSON LEE. Mr. Chairman.
Mr. BACHUS. And with that I yield the balance of my time to the gentleman from Indiana.
Mr. HOSTETTLER. I thank the gentleman, and I want to, first of all, return to Marbury v. Madison and say how much I appreciate the fact that we are going to enter a copy of the decision in the record, because then many people may read it, especially on this Committee, because twice now the gentleman from New York has suggested that the Court did not strike down in Marbury v. Madison article 13, the Judiciary Act of 1789; that, in fact, Jefferson did.
Marbury v. Madison, that is exactly what the Court did. The Court found article 13 of the Judiciary Act of 1789, quote, repugnant to the Constitution, end quote, and said that, quote, the Congress cannot give original jurisdiction to the Supreme Court where the Constitution only gives us appellate jurisdiction, end quote.
And so it was the Court that created the political dodge, because as I pointed out earlier, and Chief Justice Warren Berger said it much more eloquently than I, that Marshall knew that Jefferson and Madison--Jefferson, the chief architect of the Declaration of Independence; Madison, the chief architect of the United States Constitution--were in no way going to seat the Federalist magistrates, Mr. Marbury and his associates. But he needed to find a way to get out of this very, very politically sensitive situation, and so he struck down the Judiciary Act, article 13 that gave original jurisdiction to the Supreme Court where the--as Marshall said, the Constitution only gives them appellate jurisdiction.
So it will be fantastic, I think, for my colleagues to have the opportunity to actually read Marbury v. Madison and not, for example, to take the word of their law school professor to see what was actually determined in the case. And, in fact, they might want to go back and read the history of the situation with Mr. Marbury and his associates and find out who was the individual under Adams, as President of the United States, that was supposedly to have delivered the commissions that did not do so because he had been appointed to the United States Supreme Court.
So I would hope that whenever we--my father used to say, before he passed away, from time to time that we learn something new every day. And so Members of this Committee who have spoken a lot about Marbury v. Madison because it is entered into the record will finally have the opportunity to learn something today when they read the decision.
Mr. WEINER. Would the gentleman yield?
Mr. HOSTETTLER. It is actually the gentleman from Alabama.
Chairman SENSENBRENNER. The time belongs to the gentleman from Alabama.
Mr. WEINER. Would the gentleman from Alabama yield for just a brief moment?
Mr. BACHUS. For a brief moment.
Mr. WEINER. Yeah, sure. I just want to read--in keeping with what the gentleman from Indiana said, I am going to read a sentence from the decision: The judicial power of the United States is extended to all cases arising under the Constitution. Not the legislative power. Not the executive power. What this court did, it said that we take to ourselves the Supreme Court of the United States over all cases arising under the Constitution. That is in the case. My law school professor didn't tell me that, as you know, not ever having had one. This is in the decision, and it is fairly--it is about as clear as it gets.
Mr. BACHUS. Let me----
Chairman SENSENBRENNER. The gentleman from Alabama.
Mr. BACHUS. Let me simply say this. All Madison or Marbury v. Madison stands for is the proposition that the Supreme Court is the final authority on issues it decides, provided Congress by statute has granted the Supreme Court the authority to hear the issue in the first place. If you will read that decision, you will see that that is clearly what it said. In other words, Congress has to provide the jurisdiction in the first place, and it is that simple.
Mr. WEINER. Would the gentleman yield on that point?
Mr. BACHUS. The case doesn't fall within the jurisdiction of the Federal courts because Congress has not granted the required jurisdiction, or removed jurisdiction. The Federal court simply can't hear the case. And the Supreme Court in the past in many decisions has dismissed cases in which it was not given----
Chairman SENSENBRENNER. The gentleman's time has expired.
Mr. BACHUS- jurisdiction to hear the case.
Ms. JACKSON LEE. Mr. Chairman.
Chairman SENSENBRENNER. The gentlewoman from Texas. For what purpose do you seek recognition?
Ms. JACKSON LEE. Strike the requisite number of words.
Mr. Chairman, I rise to support the amendment of the distinguished gentleman from Virginia, because I think, in part, it raises the specter of the very debate or the crux of the debate, and that is to reinforce rights as opposed to taking rights away.
His amendment simply says, if you prevail in determining that this is an unconstitutional position, then attorney's fees are to be granted, which goes back to the point of my earlier amendment which simply recounts for the Members and adds to this legislation a restating of the responsibilities or the guidelines or the governance of the Article III Courts which is that the Supreme Court and the appellate courts have jurisdiction of all cases in law and equity arising under the Constitution, the laws of the United States and treaties.
I guess if this was simply a debate on policy, a debate on your religious belief, your social belief, we delineate simply that, maybe, we would spend a couple of weeks dealing with this.
But embodied in this amendment that Mr. Hostettler has offered is a cutting away of the appellate responsibilities of these Article III Courts, and we go back and forth about what the Congress can and cannot do. The preciousness of these Article III Courts is the fact that they do not close the doors to any petitioner who desires to seek relief. They may not come away with the relief they desire, but they have the opportunity to go inside the courthouse.
As I reminded my colleagues, many of us were dissatisfied with the 2000 decision done by a Supreme Court. Our colleagues are also reminded by Mr. Weiner that, for many of us, that case is one that we might have chosen to rewrite the law. We did not. But we do, as a Congress, have the right, as we are receiving decisions that we dislike, we can come and go and come and go.
This amendment cuts away at the very infrastructure of the Constitution. How in the world can we have three distinct branches when we are seeking, not to talk about policy, we are talking about procedure? We are talking about eliminating the appellate jurisdiction, the right of review, of these courts. That, in essence, is taking away rights and closing the courthouse door.
I request that we support the amendment which grants attorney's fee but would hope that we be reminded that this amendment is not just about policy and whether or not you agree with a lifestyle or that you promote marriage. This is not the Federal Marriage Act. This is a cutaway at the very structure of the third branch of Government of which the Constitution says, in essence, the Supreme Court has final arbiter's power to make final decisions.
I would ask that both the present or underlying bill be defeated but that the amendment of Mr. Scott be supported.
Mr. Chairman, I yield back the balance of my time.
Chairman SENSENBRENNER. The question is on the Scott amendment to the amendment in the nature of a substitute. Those in favor will say aye. Opposed, no.
The noes appear to have it. The noes have it.
The amendment is not agreed to.
The unfinished business is the recorded vote on the amendment by the gentlewoman from Texas, Ms. Jackson-Lee, to the amendment in the nature of a substitute upon which further proceedings were postponed.
Those in favor of the Jackson-Lee amendment to the amendment in the nature of a substitute will, as your names are called, answer aye. Those opposed, no.
The clerk will call the role.
The CLERK. Mr. Hyde?
[No response.]
The CLERK. Mr. Coble?
Mr. COBLE. No.
The CLERK. Mr. Coble votes no. Mr. Smith?
[No response.]
The CLERK. Mr. Gallegly?
[No response.]
The CLERK. Mr. Goodlatte?
[No response.]
The CLERK. Mr. Chabot?
Mr. CHABOT. No.
The CLERK. Mr. Chabot votes no. Mr. Jenkins?
Mr. JENKINS. No.
The CLERK. Mr. Jenkins votes no. Mr. Cannon?
Mr. CANNON. No.
The CLERK. Mr. Cannon votes no. Mr. Bachus?
Mr. BACHUS. No.
The CLERK. Mr. Bachus votes no. Mr. Hostettler?
Mr. HOSTETTLER. No.
The CLERK. Mr. Hostettler votes no. Mr. Green?
Mr. GREEN. No.
The CLERK. Mr. Green votes no. Mr. Keller?
Mr. KELLER. No.
The CLERK. Mr. Keller votes no. Ms. Hart?
Ms. HART. No.
The CLERK. Ms. Hart votes no. Mr. Flake?
Mr. FLAKE. No.
The CLERK. Mr. Flake votes no.Mr. Pence?
Mr. PENCE. No.
The CLERK. Mr. Pence votes no. Mr. Forbes?
Mr. FORBES. No
The CLERK. Mr. Forbes votes no. Mr. King?
Mr. KING. No.
The CLERK. Mr. King votes no. Mr. Carter?
Mr. CARTER. No.
The CLERK. Mr. Carter votes no. Mr. Feeney?
Mr. FEENEY. No.
The CLERK. Mr. Feeney votes no. Mrs. Blackburn?
Mrs. BLACKBURN. No.
The CLERK. Mrs. Blackburn votes no. Mr. Conyers?
[No response.]
The CLERK. Mr. Berman?
[No response.]
The CLERK. Mr. Boucher?
[No response.]
The CLERK. Mr. Nadler?
Mr. NADLER. Aye
The CLERK. Mr. Nadler votes aye. Mr. Scott?
Mr. SCOTT. Aye.
The CLERK. Mr. Scott votes aye. Mr. Watt?
Mr. WATT. Pass
The CLERK. Mr. Watt votes pass. Ms. Lofgren?
Ms. LOFGREN. Aye.
The CLERK. Ms. Lofgren votes aye. Ms. Jackson Lee?
Ms. JACKSON LEE. Aye.
The CLERK. Ms. Jackson Lee votes aye. Ms. Waters?
Ms. WATERS. Aye.
The CLERK. Ms. Waters votes aye. Mr. Meehan?
Mr. MEEHAN. Aye.
The CLERK. Mr. Meehan votes aye. Mr. Delahunt?
[No response.]
The CLERK. Mr. Wexler?
[No response.]
The CLERK. Ms. Baldwin?
Ms. BALDWIN. Aye.
The CLERK. Ms. Baldwin votes aye. Mr. Weiner?
Mr. WEINER. Aye.
The CLERK. Mr. Weiner votes aye.Mr. Schiff?
Mr. SCHIFF. Aye.
The CLERK. Mr. Schiff votes aye. Ms. Sanchez?
Ms. SANCHEZ. Aye.
The CLERK. Ms. Sanchez votes aye. Mr. Sensenbrenner?
Chairman SENSENBRENNER. No.
The CLERK. Mr. Sensenbrenner votes no.
Chairman SENSENBRENNER. Are there Members in the Chamber who wish to cast or change their vote?
The gentleman from California, Mr. Berman?
Mr. BERMAN. Aye.
The CLERK. Mr. Berman votes aye.
Chairman SENSENBRENNER. The gentleman from Texas, Mr. Smith?
Mr. SMITH. Mr. Chairman, I vote no.
The CLERK. Mr. Smith votes no.
Chairman SENSENBRENNER. The gentleman from Virginia, Mr. Goodlatte?
Mr. GOODLATTE. No.
The CLERK. Mr. Goodlatte votes no.
Chairman SENSENBRENNER. Are there further Members in the Chamber who wish to cast or change their vote? If not, the Clerk will report.
The CLERK. Mr. Chairman, there are 11 ayes and 19 noes.
Chairman SENSENBRENNER. And the amendment is not agreed to.
Are there further amendments?
If not, the question is on agreeing to the amendment in the nature of a substitute offered by the Chair. Those in favor will signify by saying aye. Opposed, no.
The ayes appear to have it. The ayes have it, and the amendment in the nature of a substitute is agreed to.
A reporting quorum is present.
The question now is on the motion to report the bill, H.R. 3313, favorably as amended. All in favor, say aye. Opposed, no.
The ayes appear to have it.
Mr. NADLER. Mr. Chairman, rollcall.
Chairman SENSENBRENNER. rollcall is ordered. Those in favor of reporting the bill favorably, as amended, will, as your names are called, answer aye. Those opposed, no.
The Clerk will call the roll.
The CLERK. Mr. Hyde?
[No response.]
The CLERK. Mr. Coble?
Mr. COBLE. Aye.
The CLERK. Mr. Coble votes aye. Mr. Smith?
Mr. SMITH. Aye.
The CLERK. Mr. Smith votes aye. Mr. Gallegly?
Mr. GALLEGLY. Aye.
The CLERK. Mr. Gallegly votes aye. Mr. Goodlatte?
Mr. GOODLATTE. Aye.
The CLERK. Mr. Goodlatte votes aye.Mr. Chabot?
Mr. CHABOT. Aye
The CLERK. Mr. Chabot votes aye. Mr. Jenkins?
Mr. JENKINS. Aye.
The CLERK. Mr. Jenkins votes aye. Mr. Cannon?
Mr. CANNON. Aye
The CLERK. Mr. Cannon votes aye. Mr. Bachus?
Mr. BACHUS. Aye.
The CLERK. Mr. Bachus votes aye. Mr. Hostettler?
Mr. HOSTETTLER. Aye.
The CLERK. Mr. Hostettler votes aye. Mr. Green?
Mr. GREEN. Aye
The CLERK. Mr. Green votes aye. Mr. Keller?
Mr. KELLER. Aye.
The CLERK. Mr. Keller votes aye. Ms. Hart?
Ms. HART. Aye.
The CLERK. Ms. Hart votes aye. Mr. Flake?
Mr. FLAKE. Aye.
The CLERK. Mr. Flake votes aye.Mr. Pence?
Mr. PENCE. Aye
The CLERK. Mr. Pence votes aye. Mr. Forbes?
Mr. FORBES. Aye.
The CLERK. Mr. Forbes votes aye. Mr. King?
Mr. KING. Aye.
The CLERK. Mr. King votes aye. Mr. Carter?
Mr. CARTER. Aye.
The CLERK. Mr. Carter votes aye. Mr. Feeney?
Mr. FEENEY. Aye.
The CLERK. Mr. Feeney votes aye. Mrs. Blackburn?
Mrs. BLACKBURN. Aye
The CLERK. Mrs. Blackburn votes aye.Mr. Conyers?
Mr. CONYERS. No.
The CLERK. Mr. Conyers votes no. Mr. Berman?
Mr. BERMAN. No.
The CLERK. Mr. Berman votes no. Mr. Boucher?
[No response.]
The CLERK. Mr. Nadler?
Mr. NADLER. No.
The CLERK. Mr. Nadler votes no. Mr. Scott?
Mr. SCOTT. No.
The CLERK. Mr. Scott votes no. Mr. Watt?
Mr. WATT. No.
The CLERK. Mr. Watt votes no. Ms. Lofgren?
Ms. LOFGREN. No.
The CLERK. Ms. Lofgren votes no. Ms. Jackson Lee?
Ms. JACKSON LEE. No.
The CLERK. Ms. Jackson Lee votes no. Ms. Waters?
Ms. WATERS. No.
The CLERK. Ms. Waters votes no. Mr. Meehan?
Mr. MEEHAN. No.
The CLERK. Mr. Meehan votes no. Mr. Delahunt?
[No response.]
The CLERK. Mr. Wexler?
[No response.]
The CLERK. Ms. Baldwin?
Ms. BALDWIN. No.
The CLERK. Ms. Baldwin votes no. Mr. Weiner?
Mr. WEINER. No.
The CLERK. Mr. Weiner votes no.Mr. Schiff?
Mr. SCHIFF. No.
The CLERK. Mr. Schiff votes no. Ms. Sanchez?
Ms. SANCHEZ. No.
The CLERK. Ms. Sanchez votes no. Mr. Sensenbrenner?
Chairman SENSENBRENNER. Aye.
The CLERK. Mr. Sensenbrenner votes aye.
Chairman SENSENBRENNER. Are there Members in the Chamber who wish to cast or change their votes?
The gentleman from Virginia, Mr. Boucher?
Mr. BOUCHER. Votes aye.
The CLERK. Mr. Boucher votes aye.
Chairman SENSENBRENNER. Further Members in the Chamber who wish to cast or change their vote?
If not, the clerk will report.
The CLERK. Mr. Chairman, there are 21 ayes and 13 noes.
Chairman SENSENBRENNER. The motion to report favorably is agreed to.
Without objection, the bill will be reported favorably to the House in the form of a single amendment in the nature of a substitute incorporating the amendments adopted here today.
Without objection, the Chairman is authorized to move to go to conference pursuant to House Rules.
Without objection, the staff is directed to make any technical and conforming changes, and all Members will be given 2 days, as provided by the House Rules, in which to submit additional dissenting, supplemental or minority views.
The business for which this meeting was called having been completed, the Committee stands adjourned.
[Whereupon, at 3:42 p.m., the Committee was adjourned.]
DISSENTING VIEWS
John Conyers, Jr.
Howard L. Berman.
Jerrold Nadler.
Robert C. Scott.
Zoe Lofgren.
Sheila Jackson Lee.
Maxine Waters.
Martin T. Meehan.
William D. Delahunt.
Robert Wexler.
Tammy Baldwin.
Anthony D. Weiner.
Adam B. Schiff.
Linda T. Sanchez.
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