Proposing an amendment to the Constitution of the United States relating to marriage.

Mr. Chairman, I thank the gentleman for yielding me this time.

My colleagues, we have before us a measure that is unconstitutional, that undermines the Federal Judiciary, and is totally unnecessary. The bill, of course, violates Marbury versus Madison, which has stated and been the law of the land since 1803. Never in these 201 years has any Congress ever brought a measure like this to the floor of the House.

In Marbury, Justice Harlan said, ``it is emphatically the role of the court to determine what the law is.'' And so we violate the very basic fundamental part of the role of the Judiciary in the Constitution. It violates the separation of powers principle because it denies the Supreme Court its historical role of final authority on the constitutionality of our laws.

Who wants 50 different decisions coming from the several courts of the States? It violates freedom of speech and religion. And we have Supreme Court cases, West Virginia State Board of Education versus Barnett, and just this year the Third Circuit held in Pennsylvania that the mandated recitation of the Pledge of Allegiance was unconstitutional.

Now, I know what you are trying to accomplish by this gross distortion of constitutional history, but ultimately someone has to decide, and we have been deciding for 201 years. To make sure it is constitutional, some minds reason, we should strip the jurisdiction of the subject from the court. What is next: guns, freedom of choice, terrorism?

We cannot proceed as a democratic nation without very emphatically joining with Senator Barry Goldwater, and Robert Bork, and our former Judiciary colleague, Bob Barr.

I rise in strong opposition to H.R. 2028, the so-called ``Pledge Protection Act''. This bill is not only unconstitutional, it undermines our federal judiciary and is totally unnecessary.

H.R. 2028 is Unconstitutional: This bill violates just about every principle in our constitution and bill of rights. First, it violates separation of powers principles because it denies the Supreme Court its historical role as the final authority on the constitutionality of our laws. This is a doctrine that was established more than 200 years ago in the landmark Marbury v. Madison decision, and which has served as the cornerstone of our system of checks and balances.

Second, it violates Freedom of Speech and Religion. This is because it makes it far more difficult for persons who feel they are being coerced into reciting the pledge to have access to the courts. These cases are not hypothetical. Sixty years ago, the Supreme Court issued the West Virginia State Board of Education v. Barnett decision, which held that it was unlawful to expel religious minorities from school if they refused to recite the pledge of allegiance. Just this year the Third Circuit held a Pennsylvania law which mandated recitation of the Pledge of Allegiance was unconstitutional.

Third, it violates the equal protection clause. This is because it imposes an undue burden on a specific class of individuals--religious minorities--without a rational basis, other than fear of independent judges. Just read the 1996 Roemer decision, which held it unlawful to pass a law excluding gay and lesbians from legal protections.

H.R 2028 Undermines the Federal Judiciary: If H.R. 2028 is enacted, it would constitute the first and only time Congress has ever enacted legislation totally eliminating any federal court from considering the constitutionality of federal legislation--in this case, the Pledge of Allegiance.

Adoption of the bill will result in the balkanization of our judiciary and would eliminate any possibility of operating under a single uniform Supreme Court. This is inconsistent with the very words of the Pledge of Allegiance, namely that we are ``one Nation under God, indivisible, with liberty and justice for all.'' Dividing our nation into 50 different legal regimes, where the Pledge is permitted in some jurisdictions and not in others, is the very antithesis of this sacred principle.

It is no wonder that principled conservatives like former Senator Barry Goldwater found court stripping legislation to be so repugnant. When court stripping legislation was proposed in the 1970's concerning school prayer, abortion, and busing, Senator Goldwater opposed them, warning that the ``frontal assault on the independence of the Federal courts is a dangerous blow to the foundations of a free society.''

Robert Bork, a former Yale Law professor and Reagan appointee for the D.C. Circuit Court of Appeals, also is strongly opposed to court- stripping measures, arguing, ``[y]ou'd have 50 different constitutions running around out there, and I'm not sure even the conservatives would like the results.''

Our former colleague Bob Barr has written, the principal problem with court stripping bills is ``that it sets a harmful precedent for the future. Our healthy democracy depends on having three separate and independent branches of government . . . I am concerned about having a Congress or President unchecked by the independent judiciary established by the Constitution.''

If we allow H.R. 2028 to pass into law, it truly could be open season on our precious rights and liberties. This was our prediction when the Majority was contemplating the Marriage Protection Act, and here we are again. Today I ask, where will this all end? Why in the world would we exempt these laws from federal judicial review and not laws concerning terrorism, or child pornography?

H.R. 2028 is unnecessary: What is most amazing to me is that we are taking up this bill at a time when the Supreme Court--which is dominated by Republican appointees--has not issued a single opinion in any way undermining the Pledge of Allegiance.

Why do we have to take up this bill now when the death toll of our men and women fighting for our right to be free from terror has reached record limits and continues to rise every single day. A recent report from the Center for American Progress shows an alarming number of suicides this year among U.S. troops serving in Iraq. Yet, at a time when our troops are working hard to answer the Nation's call, their own needs remain unmet--put at the bottom of the list of priorities.

Conclusion: Just as I opposed the ill-considered Marriage Protection Act two months ago, I must oppose this court stripping bill. These efforts to deny our citizens access to the federal courts constitute nothing less than a modern day version of ``court packing.'' Just as President Roosevelt's efforts to control the

outcome of Supreme Court decisions by packing it with loyalists was rejected by Congress in the 1930's, thereby preserving the independence of the federal judiciary, so too must this modern day effort to show the courts ``who is boss'' fail as well.

Mr. Chairman, I insert for the Record letters from organizations opposing this bill:

September 20, 2004.

Oppose the ``Pledge Protection Act,'' H.R. 2028

U.S. House of Representatives,

Washington, DC.

Dear Representative: We, the undersigned organizations

dedicated to protecting women's reproductive health and

rights, write to urge you to oppose H.R. 2028, the so-called

``Pledge Protection Act.'' The implications of this bill go

far beyond the context of the Pledge of Allegiance. This bill

would set a dangerous precedent that would disrupt the

traditional separation of powers and undermine the

longstanding role of the federal judiciary in safeguarding

constitutional rights, including the right of reproductive

choice.

H.R. 2028 would deny all federal courts--including the U.S.

Supreme Court--the jurisdiction to hear any cases concerning

the interpretation or constitutionality of the Pledge of

Allegiance. The bill would irreparably alter the relationship

between the judicial branch and the two other branches of the

federal government by depriving the federal courts of their

traditional role as interpreters of the U.S. Constitution.

Even more disturbing, unlike other previous versions of

court-stripping legislation, H.R. 2028 deprives even the U.S.

Supreme Court of jurisdiction, divesting the Court of its

historical role as the final authority on the U.S.

Constitution.

We are deeply concerned about legislation like H.R. 2028

that strips federal courts of their important role in

safeguarding constitutional rights and freedoms. While the

target today is a controversial view of the Pledge of

Allegiance and the separation of church and state (a view

that the Supreme Court has not endorsed), there can be no

doubt that anti-choice lawmakers and their allies in Congress

intend to use this strategy to achieve other policy goals

that they are unable to accomplish without toppling the

delicate constitutional balance of powers that has served

this country for more than 200 years. Recently, House

Majority Leader Tom DeLay told reporters that he plans to use

``jurisdiction stripping'' measures to achieve other social

policy goals. While he claimed that the time is ``not quite

ripe'' to apply this legislative tactic to the issue of

abortion, in fact, anti-choice lawmakers have already made

the attempt--in 2002, when considering the Federal Abortion

Ban. Although that particular effort failed, passage of H.R.

2028 would set a dangerous precedent for future attempts to

strip federal courts of jurisdiction to hear cases regarding

reproductive choice. The federal courthouse doors should not

be closed to women seeking to vindicate their right to obtain

critical reproductive health services.

For these reasons, we urge you to oppose H.R. 2028.

Sincerely,

American Association of University Women

Center for Reproductive Rights

Choice USA

Feminist Majority

Legal Momentum (the new name of NOW Legal Defense and

Education Fund)

NARAL Pro-Choice America

National Abortion Federation

National Council of Jewish Organizations

National Council of Women's Organizations

National Family Planning and Reproductive Health

Association

Planned Parenthood Federation of America

Unitarian Universalist Association of Congregations.

Mr. Chairman, while I commend Chairman Sensenbrenner for heeding the advice of Representative Bobby Scott and offering an amendment that will allow DC residents to have their day in court, I am concerned that the amendment does not grant similar protections to residents of U.S. territories.

This is because the local courts in the U.S. Virgin Islands (codified at 48 U.S.C. Sec. 1611, population 110,000 residents); the Northern Mariana Islands (codified at 48 U.S.C. Sec. 1821, population 78.000); and Guam (codified at 48 U.S.C. Sec. 1424, population 160,000); were all created by acts of Congress, not the local legislatures.

Since this bill provides that ``[n]o court created by an Act of Congress'' shall have any jurisdiction to hear cases concerning the constitutionality of the Pledge of Allegiance, the net result is that under H.R. 2028, no judicial review would be available for Pledge of Allegiance cases for the nearly 350,000 combined residents of these territories.

As the majority's own witness, Martin Redish, concluded at the Committee's hearing on court stripping legislation:

. . . as long as the state courts remain available and

adequate forums to adjudicate federal law and protect federal

rights, it is difficult to see how the Due Process Clause

would restrict congressional power to exclude federal

judicial authority to adjudicate a category of cases, even

one that is substantively based.

Unfortunately, under the Chairman's amendment, such a local court review would not be possible in Guam, the Virgin Islands, and the Northern Mariana Islands. As a result, the bill would continue to be unconstitutional with regard to these territories.

Mr. Chairman, I rise in support of this amendment, which would preserve Supreme Court review of appeals related to the constitutionality of the Pledge of Allegiance.

As presently drafted the legislation precludes any federal judicial review, either by a

lower federal court or the Supreme Court, of any constitutional challenge to the Pledge of Allegiance.

Aside from the obvious constitutional flaws inherent in the bill, the idea of Congress unilaterally cutting off constitutional review by the Supreme Court constitutes both a poor and dangerous legal precedent. As presently drafted, the legislation not only degrades the independence of the federal judiciary and the Supreme Court, but eliminates any possibility of developing a single uniform policy with regard to the recitation of the Pledge from the 50 state supreme courts.

Since H.R. 2028 strips the Supreme Court of the ability to review state court decisions, including those involving federal questions, a lack of uniformity in the law is an imminent threat. One's federal rights would depend on the vagaries of location. Ultimately, coercing children to recite the Pledge may be permitted in one state and not in another. This is why it is so important that we pass the Watt amendment.

The complete, unprecedented, and unnecessary stripping of Supreme Court jurisdiction inherent in the current bill would be totally at odds with the policy of checks and balances envisioned by the Nation's founders. As a matter of fact, the legislation would bring us far closer to the balkanized scenario envisioned by the Articles of Confederation, than the unified nation brought forth by the Constitution.

It is ironic that in the very same year that Congress celebrated Justice John Marshall by authorizing a commemorative coin in his honor, the Judiciary Committee would disparage him by passing legislation such as the bill that is totally inconsistent with Marshall's seminal legal opinion, Marbury v. Madison.

We should not use the issue of the constitutionality of the Pledge of Allegiance to permanently damage our courts, our constitution, and Congress. At a time when it is more important that ever that our nation stand out as a beacon of freedom, I cannot support a bill which undermines the very protector of those freedoms--our independent federal judiciary.

I urge my colleagues to vote ``yes'' on this important amendment.

Mr. Chairman, the Jackson-Lee amendment is needed to make sure that the bill does not prevent religious minorities who are coerced into reciting the Pledge, in violation of their religious beliefs from having access to the Federal courts.

As presently drafted, the bill would prevent not only persons who believe that voluntary recitation of the Pledge is unconstitutional from seeking relief in Federal courts, but also those persons who assert that they are being forced into recitation of the Pledge in violation of their religious beliefs.

Cases of this nature are not infrequent. For example, in the landmark Supreme Court decision of West Virginia State Board of Education v. Barnett; the Supreme Court struck down a West Virginia law that mandated schoolchildren to recite the Pledge of Allegiance. Under the West Virginia law, religious minorities faced expulsion from school and could be subject to prosecution and fined, if convicted of violating the statute's provisions. In striking down that statute, Justice Jackson wrote for the Court:

If there is any fixed star in our constitutional

constellation, it is that no official, high, or petty can

prescribe what shall be orthodox in politics, nationalism,

religion, or other matters of opinion or force citizens to

confess by word or act their faith therein.

To argue that the State courts would still be bound by this precedent as the Chairman asserts, misses the point. Unless the State courts know the Supreme court can and will enforce its precedent, the State courts are free to ignore it. And there will be no further appeal.

Moreover, just this year, in striking down a Pennsylvania law mandating recitation of the Pledge as violating free speech the Third circuit in Circle School v. Pappert court found:

The rights embodied in the Constitution, particularly the

First Amendment, protect the minority--those persons who

march to their own drummers. It is they who need the

protection afforded by the Constitution and it is the

responsibility of federal judges to ensure that protection.

As presently drafted, the bill would strip the parents of those children of the right to go to court and defend their children's religious liberty. If this legislation is passed, schools could expel children for acting according to the dictates of their faith and Congress will have slammed the courthouse door shut in their faces. We need this amendment to make sure religious minorities continue to have access to the Federal courts in cases of religious coercion.

For these reasons I urge my colleagues to vote ``yes'' on this amendment.

Mr. Speaker, will the gentleman yield?

Mr. Speaker, I wanted to ask the previous speaker, who said he had presided over the dissolution of 20,000 marriages, I just wonder, in how many of those was the cause of the dissolution some gay relationship?

I mean, I am prepared to own up when I am at fault. Am I responsible, as a gay man, for any of those 20,000 dissolutions? The gentleman said there were 20,000 dissolutions. Would he tell us in how many of those 20,000 dissolutions was the existence of a gay marriage or gay civil union the cause?

A half a dozen out of 20,000.

I apologize. If the gentleman would continue to yield briefly.

I apologize for assuming that the gentleman was referring to gay marriage. This is a debate about gay marriage. So when the gentleman talked about the dissolution of 20,000 marriages, I made, apparently, the incorrect inference that there was some relationship between what the gentleman was saying and the subject under suggestion. I withdraw the inference.

Mr. Speaker, consistently proponents of this amendment have tried to hide what it does. Yes, there is a question about what one State could be compelled to do by the Federal courts to respect another. If that were the problem, an amendment could come forward aimed narrowly at that. I would not support it. But an amendment that said the full faith and credit clause does not apply could have come forward. This amendment goes far beyond that. But the proponents of it apparently understand how indefensible it is in the very democratic terms which they use, and therefore they conceal it from the people, speaker after speaker after speaker.

I hope the majority leader will tell us why he will not be straightforward about this element of it and here is what it is: this does not simply say that judges cannot decide the question. And it does not say that one State cannot compel another. It also says, and its major impact, if it were to pass, would be to say to the voters of Massachusetts, no matter what you say in a referendum, no matter how you, the democratic electorate of Massachusetts, choose to define marriage, we the Federal Government overrule you.

What justification have you for that? You say the people of Texas, the people

of Tennessee want to decide. Why not the people of Massachusetts? Why did you not draft an amendment that would have honored the right of a State's electorate to make a decision? Our legislature is now in charge of this issue. The legislature will decide and the referendum will decide; and this amendment undeniably, but silently, says that no matter what any State does, it will be overruled. Vermont's civil union law originally came from the courts, but it has since been accepted by the political electorate. There have been votes in Vermont over this. Elections. This would also be overturned.

But now let me turn to the merits. We heard one gentleman say that he was not talking about same-sex marriage. He just noted that he had presided over the dissolution of 20,000 marriages. I am a gay man and I have presided over the dissolution of none. So I guess I do not feel quite as guilty about assaulting marriage as some of you would like me to feel. I am sorry Rush Limbaugh has been divorced three times, but it ain't my fault; and it is not the fault of any of my friends. That is the issue.

We are not assaulting marriage. Since when is it an assault on something for people to say, you know what, we have been excluded from this institution. We are also human beings and we feel love. We feel it in a way different than you. We feel it for someone of the same sex, male or female. And we look at your institution of marriage, and we see the joy it brings. We see the stability it brings to society. How does it hurt you if we share in it? That is the core issue I have not heard understood. What is it about the fact that two women in love in Massachusetts want to be legally as well as morally responsible for each other and live together and keep their home? Why is that an assault on you?

What a case of blaming the victim. You are defending yourselves against two loving people whose failure is to love each other and to want not simply to be free floating but to be committed? What is it you are protecting yourselves against? How do we threaten you? What about the love of two men so disturbs you that it would dissolve marriages? There are apparently, what, men and women happily married all over the country and they will learn that in Massachusetts the legislature allowed same-sex marriage to continue and they will get a divorce, they will call the gentleman from Texas and he can make it 20,001.

The gentleman from Texas, the majority leader, says this is not about gay marriage. Yes. And God didn't make little green apples and it don't rain in Indianapolis in the summertime. This is a political effort and it comes up a month before the election when it has been an issue since May of this year at least and before, a month before the election, an amendment that has no chance to pass, demonizes same-sex couples.

I say demonize for this reason. You say, we do not have anything against these people. Then why do you change my love into a weapon? Why if I have the same feelings that you do towards another human being does that somehow become the only weapon of mass destruction you have ever been able to find?

I urge the House to turn this down, let the people of Massachusetts make their own choices, and let loving men and loving women live in peace.

Mr. Speaker, I insert into the Record answers I gave to the Committee on the Judiciary and some further material which rebut the preposterous conclusion of Stanley Krutz, which was quoted here, that somehow, same-sex marriage resulted in a decline in heterosexual marriages elsewhere.

Judiciary Committee, Constitution Subcommittee,

Rayburn House Office Building,

Washington, DC.

Answers to the questions from Jerrold Nadler:

When I was asked about Stanley Kurtz's research by

Congresswoman Hart at the hearing, I had not read any of his

work. I now have and I can say that I believe his

interpretation is entirely without intellectual merit.

As I recall Ms. Hart's question, she asked me to accept Mr.

Kurtz's factual assertion that a recognition of same-sex

marriage had been followed in various European countries by a

decline in heterosexual marriage, and asked if I could think

of any possible explanation other than that the former had

caused the latter.

I was reluctant to answer the question before reading the

data lest I be validating premises and assumptions which I

would later find to be invalid. This turns out to be the

case. In fact, Mr. Kurtz does not himself argue that same-sex

marriage recognition preceded a decline in heterosexual

marriage. In every country he discusses, and his selection is

surprisingly sparse, a point to which I'll return, a decline

in heterosexual marriage and childrearing in heterosexual

marriages preceded by a significant period of years any

recognition of same-sex marriages.

But even on the narrow--and inaccurate--statement of Mr.

Kurtz's position that Ms. Hart put forward, the alternative

explanation to the assertion that same-sex marriage causes a

deterioration in heterosexual marriage is a simple one: They

may both be effects of the same or similar social causes.

Indeed, as Ms. Hart put the question to me, it can serve as a

dictionary example of the logical fallacy known as ``post hoc

ergo propterhoc.'' That is, the fallacy that believes that if

something happened after something else, it must necessarily

have been caused by it.

The key point again to stress is that Mr. Kurtz himself

does not argue that same-sex marriage recognition preceded

the deterioration in opposite-sex marriage.

In fact, Mr. Kurtz himself argues essentially that the

primary relationship of same-sex marriage and a decline in

heterosexual marriage is that they are both cause by the same

set of social phenomena. A fundamental flaw in his reasoning

of course is that he does virtually no analysis of any of the

European countries in which there has not been some form of

recognition of same-sex relationships. In other words, there

is zero comparative analysis in his work. Have significant

deteriorations in the incidence of heterosexual marriages

happened in other European countries which have not in

fact recognized same-sex relationships. The answer is

almost certainly yes but we will never know that from

reading Mr. Kurtz, who carefully avoids even posing that

question, obviously lest his hypothesis be endangered. He

does refer to England as a country where there has been a

significant deterioration in the number of heterosexual

marriages, but fails to note that this undercuts his

argument about the relationship between this and

recognizing same-sex relationships since England had not

done that at the time of his analysis.

The second point to be stressed is that Mr. Kurtz is not

talking about same-sex marriage in most cases, but rather of

various forms of recognition of same-sex relationships, akin

to domestic partnerships or civil unions. This is relevant

because some of those who questioned me who are supporters of

a Constitutional amendment asserted that they were talking

only about the unique nature of marriage, and seemed to think

that Mr. Kurtz supported them. Of course he does not since he

conflates marriage and other forms of recognition throughout

his analysis. Thus, the distinction that one Constitutional

amendment draws between marriage and other forms of same-sex

relationships does not appear to be at all supported by Mr.

Kurtz's analysis.

I have read both his testimony and his article in the

Weekly Standard carefully and I am unable to find any

coherent argument that says that recognizing same-sex

relationships reinforced--he does not claim that they are the

primary cause--a decline in heterosexual marriage. His exact

statement is ``there is good reason to believe that same-sex

marriage and marriage-like same-sex registered partnerships

are both an effect and a reinforcing cause of the

Scandinavian trend towards unmarried parenthood.'' The

primary cause of the ``marital decline in Scandinavia''

according to Mr. Kurtz, incidentally, are ``contraception,

abortion, women in the workforce, cultural individualism,

secularism and the welfare state.'' That is, all of these

have by Mr. Kurtz's own analysis more of a responsibility for

the decline of heterosexual marriage and same-sex-marriage.

This of course reinforces my earlier point--namely that Mr.

Kurtz scrupulously in his analysis avoids looking at the

statistics in countries which have not recognized same-sex

marriage, since virtually all of them in Western Europe are

affected by these other factors. And it does appear that to

Mr. Kurtz, even if we abolish same-sex relationship

recognition, we would have to ban or severely restrict

contraception, abortion, women in the workforce, cultural

individualism, secularism and the welfare state if we were to

save marriage. I recognize that there are members of the

Judiciary Committee who are attracted by the notion of

restricting some or all of these, and I commend their

discretion in not being more explicit about this wish.

When it comes to causality, the only effort to establish a

causal relationship-between recognizing same-sex unions and

the decline in heterosexual marriage comes in his testimony

when Mr. Kurtz says that ``same-sex partnerships in

Scandinavia have furthered the cultural separation of

marriage and parenthood in at least two ways.'' He then says

that ``first, the debate over same-sex partnerships has split

the Norwegian Church,'' and he argues that this weakening of

the traditionals within the Norwegian Lutheran Church is a

cause of an increase in same-sex relationships. I have tried

very hard to find the second causal factor but a very close

reading of the text produces no second. So we are left with

one assertion of causality--namely that the fact that

``clergy who preach against homosexual behavior are banned''

from preaching in parts of Norway means that their advocacy

of heterosexual marriage is no longer heard. This

reinforces my view that whatever is or is not happening in

Scandinavia in this regard has virtually no relevance to

the United States.

I am aware of no religious denomination that has banned

clergy from the pulpit if they are against same-sex

marriages. There are some denominations that allow this to be

performed, but there should be no analogy between the United

States, where the great majority of religious groups do not

recognize same-sex marriages, and Mr. Kurtz's view of parts

of Norway where virtually all clergy who oppose same-sex

marriage are banned. To be explicit, if the causality that

links a recognition of same-sex relationships to a decline in

heterosexual marriage rests entirely on the fact that anti-

same-sex relationship clergy are being marginalized and in

some cases silenced, it has no relevance to the United States

where nothing of that sort has happened or is likely to

happen.

This leads me to my final point--namely that reading Mr.

Kurtz makes it even clearer than it was to me before that the

most relevant experience to draw on in predicting what impact

recognizing same-sex relationships will have on American

society comes from Vermont. Some have argued that the Vermont

experience is not relevant because it has only been in effect

for four years or so. But Mr. Kurtz himself has an important

section in his testimony on the Netherlands, where ``formal

same-sex marriage . . . took effect in 2001,'' and

``marriage-like registered partnerships'' dates from 1998. In

other words, the Vermont experience is roughly comparable in

time to that of the Netherlands, and if Mr. Kurtz is right in

judging an impact based on the Netherlands, Vermont should be

equally relevant from the chronological standpoint--and, as a

part of the United States, far more relevant culturally.

We have one set of experiences with legal recognition of

same-sex relationships in the United States--that of Vermont.

It shows none of the negative effects that opponents of same-

sex marriage have predicted. Mr. Kurtz advances a correlation

in the contin

ued decline of marriage in various European countries--where

that decline long predated any recognition of same-sex

relationships--and the recognition of same-sex relationships.

But he carefully confines his analysis only to those

countries where same-sex relationships have been recognized,

so we have no way of telling whether or not the decline in

marriage that he attributes to same-sex relationships has

been equally great in countries where there is no such

recognition. And the only specific causal point he advances

is that this silencing or intimidation of Norwegian Lutheran

clergy who oppose same-sex marriage has diminished their

ability to preach in favor of heterosexual marriage. I am

very certain in my view that the experience in Vermont is far

more relevant to gauging the impact of a recognition of same-

sex relationships in the United States than is the experience

in a couple of Norwegian counties where the clergy opposed to

same-sex relationships have been silenced.

Barney Frank.

Mr. Chairman, I thank the gentleman for yielding me this time.

Mr. Chairman, I come from a State with a long tradition of supporting religious freedom. The Virginia Statute For Religious Freedom, written by Thomas Jefferson preceded the first amendment to the Constitution. This bill does not protect religious freedom, and it also undermines fundamental rights of American citizens.

Mr. Chairman, most experts believe that the bill is meaningless, because whether or not the recitation of the Pledge is constitutional or not constitutional is a matter for the courts to decide. And if it is unconstitutional, that ruling cannot be changed by a statute enacted by this body.

Now, I happen to believe that the present Pledge of Allegiance is constitutional, and I agree with the dissent in the Newdow versus U.S. Congress case, the recent Ninth Circuit case involving the Pledge of Allegiance. In my judgment, the dissent accurately surmised, and I quote ``Legal world abstractions and ruminations aside, when all is said and done the danger that `under God' in our Pledge of Allegiance will tend to bring about a theocracy or suppress someone's belief is so minuscule as to be de minimis. The danger that phrase represents to our first amendment's freedoms is picayune at best.''

Now, to the extent that ``under God'' is worthy of this excessive attention, every hearing we have and every bill we pass on this issue only serves to chip away at the de minimis argument and we have to deal with the issue as it is explained in the Christian Century, a non- denominational Protestant weekly, which stated, and I quote, ``To the extent `under God' has real religious meaning, then it is unconstitutional. The phrase is constitutional to the extent that it is religiously innocuous. Given that choice, I side with the Ninth Circuit, the government should not link religion and patriotism.'' Now, that is an editorial position expressed by the Christian Century.

The simple fact is we need to protect the Constitution and the rights of the court to decide whether the Pledge is constitutional or not, but the majority will not do that. H.R. 2028 is a court-stripping bill, plain and simple.

We had the same debate on the floor just 2 months ago when we debated the Marriage Protection Act of 2003. Mr. Chairman, I ask that that debate be incorporated by reference here just to save time. Because at that time many of us expressed concern about the detrimental precedent that we would be setting by passing a court-stripping bill. Today, our concerns have been validated.

This bill would strip the courts of their ability to hear cases that are clearly within Federal jurisdiction because they address fundamental constitutional rights and individual liberties guaranteed to us in the bill of rights. Furthermore, this bill is not limited to cases addressing the words ``under God.'' The recitation of the Pledge may, in some circumstances, implicate the right to free speech, the right of free association, the right to the free exercise of religion, and the establishment clause protections, all guaranteed under the first amendment to the Constitution.

We need Federal courts to protect our rights, and this bill prohibits the courts from doing just that. This bill violates over 200 years of constitutional principle established in Marbury versus Madison that the Supreme Court can rule on the constitutionality of legislative actions.

Now, if this kind of court-stripping legislation had been passed in 1954, Congress could have prohibited the Supreme Court from hearing cases involving segregation in public schools and the courts could not have ruled in Brown v. Board of Education. Or if it had passed such language in the 1960s, we might not have had the decision issued by what some are now calling rogue, unelected, lifetime-appointed, activist judges when they ruled to overrule the will of the people of Virginia and require Virginia to recognize marriages between blacks and whites. That could not have happened unless those so-called rogue, unelected, lifetime-appointed, activist judges made the decision they made.

The truth is we rely on Federal courts to determine and enforce our civil rights. In our system of democracy, which we are touting around the world, courts are where citizens can vindicate their rights. Our government works on a system of checks and balances. That is why many organizations, legal associations, civil rights groups, and religious organizations, have written to oppose us overturning 200 years of judicial precedence.

In closing, Mr. Chairman, we should, instead, adhere to the wisdom of the Supreme Court in the Barnette case, which said ``The very purpose of the bill of rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to

vote; they depend on the outcome of no elections.''

Mr. Chairman, I submit for the Record letters from organizations in opposition to this bill.

The Constitution Project,

Washington, DC, September 20, 2004.

House of Representatives, U.S. Capitol, Washington, DC.

Dear Members of House of Representatives: I write on behalf

of the Constitution Project to urge you to oppose H.R. 2028,

the ``Pledge Protection Act of 2003.''

The Constitution Project, based on Georgetown University's

Public Policy Institute, specializes in creating bipartisan

consensus on a variety of legal and governance issues, and

promoting that consensus to policymakers, opinion leaders,

the media, and the public. We have initiatives on the death

penalty, liberty and national security, war powers, and

judicial independence (our Courts Initiative), among others.

Each of our initiatives is directed by a bipartisan committee

of prominent and influential businesspeople, scholars, and

former public officials.

Our Courts Initiative works to promote public education on

the importance of our courts as protectors of Americans'

essential constitutional freedoms. Its co-chairs are the

Honorable Mickey Edwards, John Quincy Adams Lecturer at the

John F. Kennedy School of Government at Harvard University

and former chair of the House of Representatives Republican

Policy Committee (R-OK), and the Honorable Lloyd Cutler, a

prominent Washington lawyer and White House counsel to

Presidents Carter and Clinton.

In 2000, the Courts Initiative created a bipartisan Task

Force to examine and identify basic principles as to when the

legislature acts unconstitutionally in setting the powers and

jurisdiction of the judiciary. The Task Force was unanimous

in its conclusion that some legislative acts restricting

courts' powers and jurisdiction are unconstitutional. The

Task Force also concluded that some legislative actions, even

if constitutional, are undesirable. (The Task Force's

findings and recommendations are published in Uncertain

Justice: Politics and America's Courts 2000.)

Our Task Force arrived at seven bipartisan consensus

recommendations, including the following, which are relevant

to the legislation at hand:

1. Congress and state legislatures should heed

constitutional limits when considering proposals to restrict

the powers and jurisdiction of the courts.

2. Legislatures should refrain from restricting court

jurisdiction in an effort to control substantive judicial

decisions in a manner that violates separation of powers, due

process, or other constitutional principles.

3. Legislatures should not attempt to control substantive

judicial decisions by enacting legislation that restricts

court jurisdiction over particular types of cases.

4. Legislatures should refrain from restricting access to

the courts and should take necessary affirmative steps to

ensure adequate access to the courts for all Americans.

Specifically, our Task Force was unanimous in its view that

there are some constitutional limits on the authority the

legislature to restrict court jurisdiction in an effort to

control substantive judicial decisions. In particular,

separation of powers, due process, and other constitutional

provisions limit such authority. Task Force members had

differing views about the scope and source of the

constitutional limit on the legislature's power in this area.

For instance, some believed that restrictions on jurisdiction

become unconstitutional when they undermine the essential

role of the Supreme Court. Others relied on a reading of the

Vesting Clause of Article III, which places judicial power--

the power to decide cases--in the hands of the courts alone.

Nonetheless, all believed that constitutional limitations

exist.

Apart from the constitutionality of laws restricting

federal court jurisdiction, the Task Force was also unanimous

in its view that legislative acts stripping courts of

jurisdiction to hear particular types of cases in an effort

to control substantive judicial decisions are undesirable and

inappropriate in a democratic system with co-equal branches

of government. Legislative restriction of jurisdiction in

response to particular substantive decisions unduly

politicizes the judicial process, and attempts by

legislatures to affect substantive outcomes by curtailing

judicial jurisdiction are inappropriate, even if believed

constitutional. (Indeed, it was striking that members

reflecting a broad ideological range--from, for example,

Leonard Leo of the Federalist Society to Steven Shapiro of

the American Civil Liberties Union--agreed that restrictions

on jurisdiction to achieve substantive changes in the law are

unwise and undesirable policy.)

The Task Force was also unanimous that legislation that

restricts access to the courts and precludes individuals from

using a judicial forum to enforce rights is undesirable and

unconstitutional. Rights are meaningless without a forum in

which they can be vindicated. Therefore, access to the courts

at both the federal and state levels is essential in order

for rights to have effect. Legislatures have the duty to

ensure meaningful access to the courts and legislative

actions that preclude this are undesirable and

unconstitutional.

Our Task Force reached these conclusions and

recommendations rightly. From its beginning, our system of

constitutional democracy has depended on the independence of

the judiciary. Judges are able to protect citizens' basic

rights and decide cases fairly only if free to make decisions

according to the law, without regard to political or public

pressure. Similarly, the judiciary can maintain the checks

and balances essential to preserving a healthy separation of

powers only if able to resist overreaching by the political

branches. Indeed, the cornerstone of American liberty is the

power of the courts to protect individual rights from

momentary excesses of political and popular majorities.

In recent years, as part of the polarization and posturing

that increasingly characterize our national and state

politics, threats to judicial independence have become more

commonplace. Attacks on judges for unpopular decisions, even

those made in good faith, have become more rampant.

Politicians are responding to unpopular decisions and

litigants by attempting to restrict courts' powers in certain

kinds of cases. However, Americans have much to lose if we do

not exercise self-restraint and instead choose short-term

political gain at the expense of judicial independence.

The independence of our judiciary is, as Chief Justice

Rehnquist described, ``one of the crown jewels of our

system of government.''

In conclusion, while Article III of our Constitution gives

Congress the power to regulate federal court jurisdiction,

this power is not unlimited, and Congress should not--and in

some instances may not--use its power to restrict federal

court jurisdiction in ways that infringe upon separation of

powers, violate individual rights and equal protection, or

offend federalism. H.R. 2028 is poised to do all three by

stripping federal courts--including even the U.S. Supreme

Court--of the authority to hear cases involving the Pledge of

Allegiance, even when such cases involve First Amendment

issues of free speech and freedom of religion. It sets the

dangerous precedent of transferring questions of federal and

constitutional law exclusively to state courts and preventing

American citizens from seeking protection of fundamental

rights in federal court, and it threatens the critical and

unique role that the federal courts play in constitutional

balance of powers, interpreting and enforcing constitutional

law, and providing legal certainty.

For these reasons, as well as those detailed our Task

Force's findings and recommendations, the Constitution

Project urges you to oppose H.R. 2028. Thank you for your

consideration.

Sincerely,

Kathryn A. Monroe,

Director, Courts Initiative.

Mr. Chairman, I applaud the chairman of the committee for offering the manager's amendment that grants to the D.C. residents the same rights that apply to residents of the 50 States under this bill, that is, the right to have some recourse in a local, non-Federal court. However, the manager's amendment still does nothing to address the same problem with respect to U.S. citizens who are residents of the U.S. Virgin Islands, Northern Mariana Islands, and Guam.

This amendment just goes to show that the majority was so busy stripping the courts of jurisdiction that it inadvertently stripped jurisdiction from all the courts, just as they did last week in a tort reform bill allowing foreign corporations to escape all liability for injuries to American citizens because the bill, in some cases, provided no United States jurisdiction in which the case could be brought.

Mr. Chairman, will the gentleman yield?

Mr. Chairman, I would say to the chairman, I think I agree with him on Puerto Rico, but disagree with regard to the Virgin Islands and others. If we could agree that the legislative intent is to make sure there will be some recourse, we could have that fixed in conference.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, the Pledge of Allegiance reads: ``I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stand, one Nation, under God, indivisible, with liberty and justice for all.''

Two words in the Pledge, ``under God,'' help define our national heritage as beneficiaries of a Constitution sent to the States for ratification, as the Constitution itself states, ``in the Year of our Lord,'' 1787, by a founding generation that saw itself guided by a providential God. Those two words, and their entirely proper presence in the system of government defined by our Constitution, have been repeatedly and overwhelmingly reaffirmed by the House of Representatives, most recently twice in the 107th Congress, by votes of 416 to 3 and 401 to 5, and in this Congress by a vote of 400 to 7.

The first Congress not only acknowledged a proper role for religion in public life, but it did so at the very time it drafted the Establishment Clause of the first amendment. Just three days before Congress sent the text of the first amendment to the States for ratification, it authorized the appointment of legislative chaplains.

And on November 28, 1863, President Abraham Lincoln delivered the Gettysburg Address and declared, in words now inscribed in one of our most beloved national monuments, ``we here highly resolve that these dead shall not have died in vain, that this Nation, under God, shall have a new birth of freedom.''

Although the United States Supreme Court recently reversed and remanded the Ninth Circuit's latest holding striking down the Pledge as unconstitutional, the Supreme Court did so on the questionable grounds that the plaintiff lacked the legal standing to bring the case. The Supreme Court's decision not to reach the merits of the case is apparently an effort to forestall a decision adverse to the Pledge since the dissenting Justices concluded that the Court in its decision, ``erected a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim.'' That does not bode well for the Pledge of Allegiance.

To protect the Pledge from Federal court decisions that would have the effect of invalidating the Pledge across several States, or nationwide, H.R. 2028 will preserve to State courts the authority to decide whether the Pledge is valid within that State's boundaries. It will place final authority or a State's pledge policy in the hands of the States themselves.

H.R. 2028 as reported by the Committee on the Judiciary is identical to H.R. 3313, the Marriage Protection Act, which the House passed just prior to the August recess except that it addresses the Pledge rather than the Defense of Marriage Act. If different States come to different decisions regarding the constitutionality of the Pledge, the effects of such decisions will be felt only within those States. A few Federal judges sitting hundreds of miles away from your State will not be able to rewrite your State's Pledge policy.

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. The Constitution clearly provides that the lower Federal courts are entirely creatures of Congress as much as appellate jurisdiction of the Supreme Court excluding its only very limited, constitutional, original jurisdiction over cases involving ambassadors and cases in which the States have legal claims against each other.

As a leading treatise on Federal court jurisdiction 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 under Article III'' of the Constitution.

Justice William Brennan, no conservative by record, writing for the Supreme Court said, ``virtually all matters that might be heard in Article III Federal courts could also be left by Congress to the State courts.''

As the Dean of Stanford Law School wrote recently, ``The Constitution leaves room for countless political responses to an overly assertive Court: Congress can strip it of jurisdiction. The means are available and they have been used to great effect when necessary, used we should note, not by disreputable or failed leaders, but by some of the most admired Presidents and Congresses in American history.''

Far from violating the separation of powers 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 in the Constitution. Integral to the American constitutional system is each branch of government's responsibility to use its powers to prevent overreaching by the other two branches. H.R. 2028, which has 226 co- sponsors, does just that, and I urge my colleagues to join me in supporting it.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield 4 minutes to the gentleman from Indiana (Mr. Pence), a member of the Committee on the Judiciary.

(Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. Chairman, I yield 3 minutes to the gentleman from Virginia (Mr. Forbes), a member of the Committee on the Judiciary.

Mr. Chairman, I yield 2 minutes to the gentleman from Ohio (Mr. Chabot), chairman of the Subcommittee on the Constitution.

Mr. Chairman, I yield 3 minutes to the gentleman from Tennessee (Mr. Duncan).

Mr. Chairman, I yield 5 minutes to the gentleman from Missouri (Mr. Akin), the author of the bill.

Mr. Chairman, I yield 2 minutes to the gentleman from New Jersey (Mr. Garrett).

Mr. Chairman, I yield myself 30 seconds.

Mr. Chairman, I beg to disagree with the gentlewoman from Texas (Ms. Jackson-Lee). It was not the Supreme Court that gave her and her ancestors their freedom; it was the 600,000 people who died during the Civil War that did that and allowed the Congress to pass three constitutional amendments which guaranteed freedom for former slaves and their descendants.

Mr. Chairman, I yield 2 minutes to the gentleman from Florida (Mr. Stearns).

(Mr. STEARNS asked and was given permission to revise and extend his remarks.)

Mr. Chairman, on the point of order, the gentleman from Florida was referencing a provision in a conference report that was adopted by this body as well as by the other body and became law.

Mr. Chairman, I yield myself the balance of my time.

Mr. Chairman, on September 17, 1937, President Franklin D. Roosevelt gave a Constitution day address, and in that speech President Roosevelt said in part, ``Lay rank and file can take cheer from the historic fact that every effort to construe the Constitution as a lawyer's contract rather than a layman's charter has ultimately failed. Whenever legalistic interpretation has clashed with contemporary sense on great questions of broad national policy, ultimately the people and the Congress have had their way.''

This was a statement that was made by what is conceded on both sides of the aisle as the greatest Democratic President in the history of this country.

In the last Congress, both the House and the Senate passed and the President signed public law 107-206. Section 706(j) of that law says, ``Any action authorized by this section shall not be subject to judicial review by any court of the United States.''

Now, where were all of the Members who are complaining about this bill when that legislation came up, because it took away the right of the Federal courts to review legal issues relating to trees in South Dakota. If Congress can deny all the Federal courts the authority to hear a class of cases to protect trees, it certainly can do so to protect the States' policy regarding the Pledge of Allegiance. That is why this bill ought to be passed.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I offer an amendment.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, this amendment is simple. Currently the bill prevents Federal courts, including courts created by an act of Congress, from striking down ``under God'' in the Pledge, while reserving to the State courts the authority to hear cases involving the Pledge.

The District of Columbia, however, due to its unique constitutional position, does not have State courts. Instead, its courts that are the equivalent of State courts are created by an act of Congress.

So, to preserve a judicial forum for District residents regarding challenges to the Pledge, this amendment simply adds the following section to the bill: ``The limitation in this section shall not apply to the Superior Court of the District of Columbia or the District of Columbia Court of Appeals.''

This sentence preserves the authority of the District's courts to hear cases involving the Pledge. I urge its adoption.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, the reason that this amendment does not include the local courts in Puerto Rico and the territories is that those courts are not created by Act of Congress, so residents of Puerto Rico and the territories will be able to file suits regarding the Pledge in the courts that have been created by their respective legislatures pursuant to the organic Act that Congress has previously passed.

I yield to the gentleman from Virginia.

Mr. Chairman, reclaiming my time, I agree with the comments made by the gentleman from Virginia (Mr. Scott).

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I claim the time in opposition.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, this amendment was defeated in committee, and it should be defeated here today because it guts the bill.

First, nothing in H.R. 2028 would allow State courts to deviate from Supreme Court precedent prohibiting the coerced recitation of the Pledge of Allegiance. Even when Federal courts are denied jurisdiction to hear certain classes of cases, and those classes of cases are thereby reserved to the State courts, the previously existing Supreme Court precedents still govern State court determinations. This is required by the Supremacy Clause of the Constitution; and in West Virginia Board of Education v. Barnette, the Supreme Court held it is unconstitutional to require individuals to salute the flag.

In that case, the Supreme Court held, ``If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.'' Under H.R. 2028 as written, that decision will preclude State courts from allowing coerced recitations of the Pledge.

State courts are not second-class courts, and they are equally capable of deciding Federal constitutional questions. The Supreme Court has clearly rejected claims that State courts are less competent to decide Federal constitutional issues than Federal courts. Even Justice William Brennan wrote in Northern Pipeline Construction Company v. Marathon Pipe Line Company that ``virtually all matters that might be heard in article III courts could also be left by Congress to State courts.'' Justice Brennan was joined in that decision by Justices Marshall, Blackmun, and Stevens.

Now what, then, could be the harm of adopting this amendment? Plenty. If we carve out an exception for cases in which coercion, for example, is involved, we will open the flood gates to expansive interpretations by the Federal courts that will gut the purpose of the bill. Carving out a coercion exemption will invite the Federal courts, including the very liberal Ninth Circuit Court of Appeals, to hold that excessive coercion exists to pressure a student to recite the Pledge simply when a majority of school children choose to recite it, but one or a few students do not want to. The inevitable claim will be that in the school environment, there is no such thing as free will whenever the majority of students are reciting the Pledge, because those that do not want to recite it will feel pressured to recite it simply because other students are reciting it. Yet again, the courts will strike a blow to the concept of free will and the concept of personal responsibility if we let them. The amendment should be defeated.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I yield myself the balance of the time.

Mr. Chairman, I will just repeat myself. The issue is settled law. There cannot be a coerced or forced recitation of the Pledge. This bill does not

change that. The amendment allows the courts to determine what coercion shall be. That has far-reaching consequences. I think that the best vote to prevent unintended consequences from occurring is ``no'' on this amendment. I urge that it be defeated.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, this is not simply about the Pledge of Allegiance. I really

hate to be an I-told-you-so, but the last time we considered legislation to strip the Federal courts of jurisdiction, in that case, to hear cases challenging the Defense of Marriage Act, I warned there would be no end to it.

Our former colleague, Bob Barr, whose legislation Congress was purporting to protect on that occasion said, no thanks. He wrote, ``This bill will needlessly set a dangerous precedent for future Congresses that might want to protect unconstitutional legislation from judicial review. During my time in Congress I saw many bills introduced that would violate the Takings Clause, the second amendment, the tenth amendment and many other constitutional protections. The fundamental protections afforded by the Constitution would be rendered meaningless if others followed the path set by H.R. 3313.''

Bob Barr was right. And it would make the Constitution like the Soviet Constitution which had plenty of guarantee of rights, but they were not worth the paper they were written on because there was no independent court system to enforce them.

Today it is the turn of the religious minorities. Once upon a time a student could be expelled from school for refusing to recite the Pledge of Allegiance. In 1943 in the middle of World War II, the Supreme Court in the Barnette case held that the children had a first amendment right not to be compelled to swear an oath against their beliefs.

Justice Jackson wrote, ``If there is any fixed star in our constitutional constellation, is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess by word or act, their faith therein.''

This obviously includes a pledge of faith in God.

The Jehovah Witnesses in the Barnette case felt that it was idolatry to be forced to pledge that even they believe in God.

This legislation would of course strip those families of the right to go to court to defend their religious liberty. Schools could once again expel children for acting according to the dictates of their religious faith, and Congress will have slammed the courthouse door in their faces.

This bill is part of a more general attack on our system of government. You learned about this in school. We have an independent judiciary whose job it is to interpret the Constitution, even if their decisions are really unpopular. And what this bill does, what these bills do is to slam the courthouse door in the face of people who believe that their Constitutional rights are violated so they cannot go to court because we tell them they cannot.

As unfortunate as I find the current Supreme Court on so many issues, I understand that we cannot maintain our system of government, we cannot enforce our Bill of Rights if the independent judiciary cannot enforce those rights even if the majority does not like it.

As to the complaints about unelected judges, remember your high school civics. We have an independent judiciary precisely to rule against the wishes of a trenchant majority, especially when it comes to the rights of unpopular minorities. That is our system of government and it is a good one.

As Alexander Hamilton said in Federalist 78, ``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. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all reservations of particular rights or privileges would amount to nothing.''

And here we are saying that when someone believes that an Act of Congress violates their rights, they may not go to court to try to see if those rights are supreme if the legislation is unconstitutional.

We are playing with fire here. We are playing with the national unity of this country. The gentleman from Wisconsin (Mr. Sensenbrenner) says the 50 State courts would reserve to themselves the right to declare Federal law unconstitutional. So what would be constitutional in one State would be unconstitutional in another. We would be back to the Articles of Confederation. We would be undoing 200 years of American history because we would have 50 different interpretations of the Constitution and of our State laws.

The gentleman from Wisconsin (Mr. Sensenbrenner) says that the Judiciary Act of 1789 restricted the jurisdiction of the courts. That is true. But he fails to note that the Judiciary Act of 1789 predates the Bill of Rights, the first ten amendments to the Constitution. The fifth amendment says that no person may be deprived of life, liberty or property without due process of law.

All claims, all claims essentially come down to a claim that someone is being deprived of life or liberty or property without due process of law; and if you cannot go to a court to adjudicate that claim by definition, you are being denied due process of law. So this is clearly unconstitutional.

I ask my colleagues, is demagoging a case that they have won in court so far really worth destroying the enforceability of the Bill of Rights? I urge my conservative colleagues to shape up and act like conservatives for once. We live in a free society that protects unpopular minorities even if the majority hates that minority. Feel free to hate if my colleagues must, but please leave our Constitution, leave our liberties, leave our civil liberties that define this Nation and makes it what it is, leave it alone.

Mr. Chairman, I reserve the balance of my time.

Mr. Chairman, I am pleased to yield 3 minutes to the gentleman from North Carolina (Mr. Watt).

Mr. Chairman, I yield 2 minutes to the distinguished gentleman from Massachusetts (Mr. Frank).

Mr. FRANK OF Massachusetts. Mr. Chairman, even by the standards that have sadly governed this House recently, the bill before us is bizarre. It makes a big hole in the Constitution for the first time in American history, if it were to pass and become law, to counteract a decision which has already been overruled. We should be very clear. There is no pending case even at the Federal level that deals with this.

But what I have heard people say is, well, do not worry, because there is an individual liberty here. The Supreme Court of the United States, after all, did say in 1943 in the Barnette case that no child could be forced to say the Pledge of Allegiance if it violated his own family's religious views. The Jehovah's Witnesses said saying the Pledge of Allegiance violated their views. The Supreme Court said they did not have to say it.

I have heard people say, well, do not worry because children will be protected if they find this objectionable by the Supreme Court decision. Now the bizarre aspect is that this is a bill that would prevent a Supreme Court decision, the very thing on which they are relying to justify it, but it is also the case that under this bill, if a State court should decide to disregard that Supreme Court opinion and say that saying the pledge was mandatory, even for Jehovah's Witnesses or others who

might have a principled religious objection to it, that that could be overruled.

The other thing that ought to be noted is this. Once my colleagues start down this road, this is the second time the majority has done this, telling us that the Supreme Court cannot decide, they are going to create a precedent, if this ever succeeds, that will be followed in other issues.

The business community ought to follow this very closely because it will now become demanded of Members of Congress that when they pass a law they show that they really mean it by taking away Supreme Court jurisdiction. So the important desire of the business community for Federal uniformity, all of the efforts they have been making recently to try and get national laws that govern commercial transactions, will be at risk; and we will see laws in area after area, if this precedent is followed, which will mean that there is no uniform national interpretation of them.

Mr. Chairman, I yield 5 minutes to the gentleman from Virginia (Mr. Scott).

Mr. Chairman, I yield 3 minutes to the gentleman from Michigan (Mr. Conyers), the very distinguished ranking member of the Committee on the Judiciary.

(Mr. CONYERS asked and was given permission to revise and extend his remarks.)

Mr. Chairman, I yield 2 minutes to the gentleman from Maryland (Mr. Hoyer), the Democratic whip of the House.

Mr. Chairman, I yield for the purpose of a making a unanimous consent request to the gentleman from Texas (Mr. Green).

(Mr. GREEN of Texas asked and was given permission to revise and extend his remarks.)

Mr. Chairman, I yield 2 minutes to the gentlewoman from Texas (Ms. Jackson-Lee).

(Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. Chairman, I yield myself such time as I may consume.

The reference to Senator Daschle was not true. We rebutted it in the debate last time. I will reference something for the Record so we do not waste time on this untruth anymore now.

Brush Clearing Rider: Most notably, the Majority claims

that a rider to the 2002 Supplemental Appropriations Act

authored by the senior senator from South Dakota approving

logging and clearance measures by the Forest Service in the

Black Hills of South Dakota serves as a precedent for the

enactment of these types of court-stripping measures.

The problem with this argument is that, while the rider

restricted ``judicial review'' of ``any [logging or

clearance] action'' by the Forest Service, it did not

restrict federal judicial review of the rider itself or its

constitutionality. Indeed, the federal courts did review the

validity of the rider, and explicitly found that the

``challenged legislation's jurisdictional bar did not apply

to preclude Court of Appeals' review as to the legislation's

validity''

Mr Chairman, I yield 2 minutes to the distinguished gentlewoman from California (Ms. Waters).

Mr. Chairman, I yield 1 minute to the distinguished gentleman from Washington (Mr. Inslee).

(Mr. INSLEE asked and was given permission to revise and extend his remarks.)

Mr. Chairman, I yield 1 minute to the gentlewoman from California (Ms. Pelosi), Democratic leader.

Mr. Chairman, I yield myself the balance of my time.

Mr. Chairman, 1,800 years ago, Christians were persecuted because they would not worship the Roman emperor as a god; 450 years ago St. Thomas Moore lost his head because he would not swear an oath that king and parliament commanded that violated his Catholic belief.

But the United States is different. Our Constitution prohibits test oaths. Our Constitution protects the rights of Jehovah's Witnesses' children to refuse to recite a pledge that we hold dear but that violates the tenets of their faith.

Or at least the United States was different. This bill would leave to the States, as the gentleman from Wisconsin (Mr. Sensenbrenner) says, the decision whether that religious liberty would be protected or not.

The issue, Mr. Chairman, in this bill is not the Pledge of Allegiance. The issue in this bill is whether we strip the courts of the power to protect our liberties against perhaps transient majorities and legislative bodies. The issue is whether we eliminate the only final protection of our liberties, of our religious and other liberties, that we have evolved. If we pass this bill and go in this direction, the United States will be a very different and a much, much less free country.

I urge the defeat of this bill.

Mr. Chairman, I yield back the balance of my time.

Mr. Chairman, I ask unanimous consent to control the time in opposition, though I do not oppose the amendment.

Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, on this side of the aisle we do not oppose the amendment.

Mr. Chairman, I yield 1 minute to the gentleman from Virginia (Mr. Scott).

Mr. Chairman, I yield 2\1/2\ minutes to the gentlewoman from California (Ms. Lofgren).

Mr. Chairman, I yield the balance of my time to the distinguished gentleman from New York (Mr. Weiner).