ACLU Says Anti-Gay House Court Stripping Bill Unconstitutional, But Vote Indicates Federal Marriage Amendment Can't Pass House

July 22, 2004 12:00 am

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WASHINGTON – The American Civil Liberties Union today expressed its disappointment with the House’s passage of a controversial and discriminatory court stripping measure, but heralded the number of “no” votes as a good predictor of the futility of bringing an anti-gay constitutional amendment to the House floor. The legislation seeks to forever slam shut federal courthouse doors to gay and lesbian couples challenging an anti-gay federal marriage law.

“Last week, the Senate rejected amending the Constitution, but today the House voted to violate it,” said Christopher E. Anders, an ACLU Legislative Counsel. “This unconstitutional bill violates the notion of Equal Protection by excluding an entire segment of Americans from ever having their day in court. By making gay and lesbian couples second class citizens, House leaders are letting politics rise above the interests of the American people.”

The Marriage Protection Act (H.R. 3313) seeks to deny the Supreme Court and all other federal courts the ability to consider any challenges to the cross-state recognition section of the Defense of Marriage Act, or DOMA. It would deny gay and lesbian couples the right to even have their day in federal court, thereby violating both the Equal Protection Clause and the separation of powers principle. It was adopted by the House today on a vote of 233 to 194.

While no companion bill has been introduced in the Senate, if this measure were to become law, DOMA could only be challenged in state courts. Because the bill strips the Supreme Court of jurisdiction to hear such challenges, there could potentially be as many as 50 different interpretations of DOMA, as each state supreme courts would be the final authority on the constitutionality of DOMA in their state. Without the final voice of the Supreme Court and the supremacy of a uniform federal law, the ACLU noted, legal chaos could ensue.

Last week, the Senate overwhelmingly rejected the Federal Marriage Amendment, which fell 19 votes short of the 67 needed to pass an amendment in the Senate. House Majority Leader Tom Delay said that while a vote on the constitutional amendment would be delayed until September, the Marriage Protection Act would be a “test vote” on the underlying issue. The ACLU noted that today’s vote falls well short of the two-thirds that would be needed in the House to pass the Federal Marriage Amendment.

Former member of Congress and author of DOMA Bob Barr has also expressed deep concern about the court-stripping legislation. In a letter sent to Congress, he reiterated his belief that DOMA would withstand constitutional scrutiny, and that he “fears an increased likelihood of an adverse decision [by a state court] on DOMA” if the bill were to pass. Moreover, he reminded members that, “our healthy democracy depends on having three separate and independent branches of government.”

The ACLU also welcomed a report issued by the non-partisan Congressional Research Service, which found that, “we are not aware of any precedent for a law that would deny the inferior federal courts original jurisdiction or the Supreme Court of appellate jurisdiction to review the constitutionality of a law of Congress.”

“Majority Leader Tom DeLay set this bill up as a ‘test vote’ for a constitutional amendment. The vote today makes clear that the amendment will overwhelmingly fail the test. Supporters of a Federal Marriage Amendment are short by at least 57 votes of the 290 that they need to pass an amendment,” Anders added. “It’s time for the Republican leadership to stop messing around with the Constitution, and get back to addressing the real problems that face real Americans..”

The ACLU’s letter on the Marriage Protection Act can be found at:

Former Congressman Bob Barr’s letter can be found at:

A letter from law professors on the Marriage Protection Act can be found at:

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