Marriage Protection Act of 2004

Mr. Speaker, I yield 2\1/2\ minutes to the distinguished gentleman from Maryland (Mr. Hoyer), Democratic whip.

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

Mr. Speaker, more than anything else, today's debate is about the politics of a national election. Perhaps our sons and daughters have been sent to Iraq based on intelligence we now know was not correct, perhaps millions of Americans are out of work, and many more do not have access to a doctor. Perhaps our seniors cannot afford life- protecting medications, but none of that matters, at least we can today take the time out to beat up on an unpopular minority.

Mr. Speaker, that may be good politics, but it demonstrates a dangerous contempt for our system of government. This debate is not really about gay marriage, no matter how long they may talk about it. The courts will or will not declare the Defense of Marriage Act unconstitutional. We do not know that yet. If they declare the Defense of Marriage Act unconstitutional, for those that disagree with them, the remedy is the normal remedy, a constitutional amendment, which I gather we will be debating on this floor in a couple of weeks before we know what the courts do.

But this debate is about whether Congress can adopt unconstitutional legislation on any subject and protect that legislation from constitutional challenge by stripping the courts of their jurisdiction to consider any such challenge. We have never done that before in our history, and we should not do that now.

No less a conservative icon than Barry Goldwater opposed court stripping bills in previous decades on the subjects of school prayer, school busing and abortion, which were the big issues in those days. He warned his colleagues that, ``The frontal assault on the independence of the Federal courts is a dangerous blow to the foundations of a free society.''

Our former colleague, Bob Barr, the author of the Defense of Marriage Act which this bill purports to protect, had this to say in a letter to the Members of Congress about this bill. ``H.R. 3313 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 10th amendment, and many other constitutional protections. The fundamental protections afforded by the Constitution would be rendered meaningless if others follow the path set by H.R. 3313.'' That is from Bob Barr.

The distinguished majority leader of the House, the gentleman from Texas (Mr. DeLay), has already said that if this bill passes he will introduce court-stripping legislation on other subjects. In fact, the likelihood is that language saying the court shall have no jurisdiction to judge the constitutionality of this act will become boilerplate. Just as every rule that we consider in this House has boilerplate language saying that all points of order against this bill are waived, which means the rules of the House do not apply, it will become boilerplate on every bill of doubtful constitutionality. That would render the Bill of Rights meaningless.

The 1936 Stalinist constitution of the Soviet Union read wonderfully on paper. It had a long list of Bill of Rights, freedom of religion, freedom of speech, and freedom of assembly. It was not worth the paper it was written on because there was no means of enforcing those rights. We depend on the courts to enforce our rights against majorities represented in Congress or State legislatures, momentary majorities perhaps.

Without the means of the courts enforcing the Bill of Rights, the Bill of Rights is a nullity. Our Constitution would become like the Soviet constitution, meaningless. We must have a Federal forum to protect liberty, otherwise that liberty will not exist.

The due process clause of the fifth amendment, passed after the Judiciary Court Act of 1789, says that no person may be deprived of life, liberty or property without due process of law. Due process of law means there has to be a judicial forum to assert the right and have the judges decide.

We are told the State courts will be the forum. The State courts will decide whether a law, a Federal law or a State law, violates the United States Constitution. That means we will have 50 different constitutions, 50 different laws. We say in the Pledge of Allegiance the United States is one Nation, indivisible; not if this bill passes. If this bill and other bills like it pass, we

will balkanize the United States. The Constitution will mean one thing in New Jersey, another thing in New York and a third thing in Pennsylvania.

Mr. Speaker, it is our very system of government and the constitutional system of checks and balances which is under attack with this bill. If the Congress by statute can prevent the Federal courts from applying the Constitution on any subject matter, then the protections of an independent judiciary, the protections of the Bill of Rights, the protections of the United States Constitution, become no more than a puff of smoke. It will, of course, be unpopular minorities, whether religious minorities, political minorities, ethnic minorities, racial minorities, lesbians, gays, whoever is unpopular at the moment, who will lose their rights.

There have been many Supreme Court decisions I have found loathsome and wrong, such as Bush v. Gore, and some of the cases invalidating or limiting our civil rights law, but while that makes me question the wisdom of some of the justices, even occasionally the motives, it does not make we want to alter the fundamental structure of our government that has protected our liberties for the last two centuries.

The evisceration of our Constitution and Bill of Rights, the natural result of this bill, threatens all of us. It is far, far more important than the question of gay marriage, which is not really involved here because that has not been decided by the courts. We are playing with fire with this bill, and that fire could destroy the Nation we love.

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

Mr. Speaker, I yield 1\1/2\ minutes to the distinguished gentleman from California (Mr. Berman).

Mr. Speaker, I yield myself 20 seconds.

Mr. Speaker, reference was made before to the Daschle court-stripping bill. There was no such thing. His bill did not court-strip. In fact, in the case of Biodiversity Associates v. Cables, his bill was judged constitutional. If the courts had been stripped of jurisdiction, they could not have done that.

The CRS says, ``We are not aware of any precedent for law that would deny the inferior Federal court's original jurisdiction or the Supreme Court of appellate jurisdiction to review the constitutionality of a law of Congress.''

Let us stop with this nonsense that this is not unprecedented.

Mr. Speaker, I yield 2\1/2\ minutes to the distinguished gentleman from Virginia (Mr. Scott).

Mr. Speaker, I am pleased to yield 2 minutes to the distinguished gentleman from Michigan (Mr. Dingell), the dean of the House.

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

Mr. Speaker, I yield 2\1/2\ minutes to the distinguished gentlewoman from California (Ms. Lofgren), a member of the committee.

Mr. Speaker, I yield 1 minute to the gentlewoman from California (Ms. Pelosi), distinguished minority leader.

Mr. Speaker, I yield 2 minutes to the distinguished gentleman from Georgia (Mr. Lewis).

Mr. Speaker, I yield 2 minutes to the distinguished gentleman from Florida (Mr. Wexler).

Mr. Speaker, I yield 2\1/2\ minutes to the distinguished gentleman from New York (Mr. Weiner).

Mr. Speaker, I yield 2\1/2\ minutes to the distinguished gentlewoman from Texas (Ms. Jackson-Lee).

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

Mr. Speaker, I am pleased to yield 3 minutes to the distinguished gentleman from Massachusetts (Mr. Frank).

Mr. Speaker, I yield 1\1/2\ minutes to the distinguished gentleman from Illinois (Mr. Emanuel).

Mr. Speaker, I yield 1 minute to the distinguished gentlewoman from California (Ms. Woolsey).

Mr. Speaker, I yield to the gentleman from Washington for purposes of a unanimous consent request.

Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from Maryland (Mr. Wynn).

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

Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from Texas (Mr. Bell).

Mr. Speaker, I yield 1 minute to the gentlewoman from California (Ms. Loretta Sanchez).

Mr. Speaker, I yield 1 minute to the gentleman from Washington (Mr. Baird).

Mr. Speaker, I yield 1 minute to the distinguished gentleman from New York (Mr. Crowley).

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

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

Mr. Speaker, I place into the Record the case of Biodiversity Associates v. Cables, which contrary to the gentleman from Florida (Mr. Stearns) ruled that the Daschle bill did not apply to preclude court of appeals review as the legislation's constitutional validity.

Biodiversity Associates v. Cable

Biodiversity Associates and Brian Brademeyer, Plaintiffs-

Appellants, Sierra Club and the Wilderness Society,

Plaintiffs, v. Rick D. Cables, in his official capacity as

Regional Forester of the Rocky Mountain Region of the U.S.

Forest Service; Dale N. Bosworth, in his official capacity as

Chief of the U.S. Forest Service; John C. Twiss, in his

official capacity as Supervisor of the Black Hills National

Forest; U.S. Forest Service, Defendants-Appellees, Larry

Gabriel, in his official capacity as Secretary of the South

Dakota Department of Agriculture; Black Hills Regional

Multiple Use Coalition; Black Hills Forest Resource

Association; Meade County, Lawrence County, and Pennington

County, all political subdivisions the State of South Dakota,

* Defendants-Intervenors-Appellees.

* Mr. Cables, Mr. Bosworth and Mr. Gabriel, who are the

successors in office of Lyle K. Laverty, Michael Dombeck and

Darrell Cruea, respectively, have been substituted as parties

pursuant to Fed. R. App. 34(c)(2).

no. 03-1002

united states court of appeals for the tenth circuit

357 F.3d 1152; 2004 U.S. App. LEXIS 1702

(February 4, 2004, Filed)

Prior History: Appeal from the United States District Court

for the District of Colorado. (D.C. No. 99-N-2173).

Disposition: Affirmed.

Counsel: Ray Vaughn of WildLaw, Montgomery, Alabama (Steve

Novak of WildLaw, Asheville, North Carolina, with him on the

briefs), for Plaintiffs-Appellants.

Kevin Traskos, Assistant United States Attorney (John W.

Suthers, United States Attorney, with him on the brief),

Denver, Colorado, for Defendants-Appellees.

Diane Best, Assistant Attorney General (Lawrence E. Long,

Attorney General; Charles D. McGuigan, Assistant Attorney

General, with her on the brief), State of South Dakota,

Pierre, South Dakota, for Defendants-Intervenors-Appellees.

Judges: Before Murphy, Circuit Judge, Brorby, Senior

Circuit Judge, and McConnell, Circuit Judge.

Opinion By: McConnell.

For many years, Congress has been unable to come to

agreement on nationwide legislation to address the dangers of

insect infestation and fire in the national forests. In 2002,

however, in a rider to a supplemental appropriations act for

the war on terrorism, Congress passed legislation applicable

to selected sections of the Black Hills National Forest in

South Dakota and nowhere else, permitting logging and other

clearance measures as a means of averting forest fires. The

legislation specifies forest management techniques for these

lands in minute detail, overrides otherwise applicable

environmental laws and attendant administrative review

procedures, and explicitly supersedes a settlement agreement

between the Forest Service and various environmental groups

regarding management of these lands.

The question presented is whether the extraordinary

specificity of this legislation, coupled with its

displacement of a settlement agreement, amounts to

congressional violation of the Constitution's separation of

powers, by invading the province of the executive branch, the

judicial branch, or both. We hold that it does not. Article

IV, Sec. 3, cl. 2 expressly grants Congress ``Power to

dispose of and make all needful Rules and Regulations

respecting the Territory or other Property belonging to the

United States.'' With respect to this power--like most of its

enumerated powers--Congress is permitted to be as specific as

it deems appropriate. Moreover, settlement agreements between

private litigants and the executive branch cannot divest

Congress of its constitutionally vested authority to

legislate.

background

The first law involved in this case is the law of

unintended consequences. Fire suppression efforts conducted

over more than a century in large parts of the West have had

the unintended effect of transforming forests from savannah-

like grasslands studded with well-spaced large, old, fire-

resistant trees, into thicker, denser forests. Prior to the

arrival of Europeans, these forests experienced frequent, but

relatively mild, forest fires caused primarily by lightning

and Native American activity. These fires would clear the

forest floor of undergrowth and saplings while leaving the

larger trees unscathed. The denser forests produced by fire

suppression accumulate more combustible fuel and are more

vulnerable to infestations, such as mountain pine beetles,

and to fires far more intense and devastating than those of

the pre-settlement era. Forestry experts are divided as to

the response to these conditions.

Some advocate a hands-off approach, allowing fire (outside

areas of human habitation) to reconstitute the forests in

their natural state; some advocate controlled burns; and some

advocate thinning and fuel removal. The role of commercial

logging as part of the last approach has been particularly

controversial.

From 1983 to 1997, the Beaver Park Roadless Area, a

relatively pristine portion of the Black Hills National

Forest, was free of logging activity, apparently because the

land management plan then in place did not allow it. In 1997,

however, the Forest Service approved a new Black Hills

National Forest plan revision (the ``1997 Revised Plan''),

which allowed logging in a significant portion of Beaver

Park's 5,109 acres. It subsequently began preparations for a

timber sale in an area called the ``Veteran/Boulder Project

Area,'' which included most of the Beaver Park land newly

authorized for logging. Especially in a part of the area

known as Forbes Gulch, a major purpose of the logging was to

counter an infestation of mountain pine beetles. The Forest

Service proceeded to clear various administrative hurdles in

preparation for the Veteran/Boulder timber sale, issuing a

final environmental impact statement on the proposed sale and

records of decision approving timber harvest both inside and

outside the Beaver Park Roadless Area.

Several environmental groups, including the Sierra Club,

the Wilderness Society, and Appellant Biodiversity

Conservation Alliance (BCA), objected strenuously to the

timber sale. The Beaver Park Roadless Area was one of the

last areas in the Black Hills National Forest still eligible

for designation as a wilderness, and logging activity would

likely disqualify it from being designated as such. The

environmental groups were also concerned about the effects

that the Veteran/Boulder timber sale would have on the

viability of the northern goshawk population in the Forest.

Accordingly, they brought administrative challenges to both

the particular project and the recently revised plan under

which it was approved.

The groups met with mixed success in their administrative

challenges. Their challenge to the Veteran/Boulder sale was

initially denied in its entirety, though the sale was stayed

pending review of the Revised Plan itself. Then, on October

12, 1999, the Chief of the Forest Service upheld the 1997

Revised Plan in most respects, but found that there was

inadequate support in the record for the conclusion that the

Revised Plan's proposed changes would not threaten the

viability of several species, including the northern goshawk.

He therefore ordered further research into that question. In

the meanwhile, the Forest Service did not stop all pending

projects, but instead provided interim directions that would

apply until the identified defects in the Revised Plan were

remedied. As a result, when the stay on the sale expired, the

Forest Service went forward and put the timber out for bid.

The Sierra Club, the Wilderness Society, and BCA brought

suit challenging the sale in federal district court, claiming

that the Forest Service could not rely on an ``illegal'' plan

to justify project-level decisions under that plan.

Specifically, they argued that the final environmental impact

statement's conclusion that the Veteran/Boulder sale would

not affect the viability of the northern goshawk was based on

the very findings in the 1997 Revised Plan that had been

disapproved.

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 settlement was approved by the United States

District Court for the District of Colorado, which had

jurisdiction over the lawsuit because the relevant Forest

Service offices were in Colorado.

The process of approving a new plan took much longer than

anticipated. The record does not reveal whether the mountain

pine beetles of western South Dakota were aware of the

settlement agreement or participated in the plan revision

process, but it is clear that they did not wait for

authorization from Washington before undertaking an expanded

program of forest resource exploitation. Just two years after

the initial Veteran/Boulder environmental impact statement,

the mountain pine beetle infestation in this section of the

Black Hills had reached epidemic proportions. According to

Forest Service estimates, the pine beetles killed 114,000

trees in 2002, as compared to only 15,000 in 1999. This

convinced forest managers that immediate harvesting of

deadwood and infested trees, which the settlement agreement

prohibited, was necessary to guard against further spread of

the infestation and potentially disastrous forest fires.

Given that approval of a corrected resource management plan

was still a long way off, the Forest Service and the local

South Dakota interests that shared its concerns had a choice:

they could either attempt to obtain consent to the tree

cutting from the original parties to the agreement, or with

the help of South Dakota's congressional delegation, they

could attempt to overturn the settlement agreement's

prohibition by legislation. The Forest Service began by

trying the consensual approach. Perhaps spurred by the threat

of intervention from Congress, the signatories to the

settlement met with the Forest Service to discuss changing

the agreement in light of the mountain pine beetle problem.

The Forest Service reached agreement with the Sierra Club and

the Wilderness Society, but BCA and Brian Brademeyer, then

chair of the Black Hills Sierra Club, refused to agree to

proposed modifications in the settlement. Stymied, South

Dakota interests turned to Congress for a legislative

solution.

For some years, Congress had been considering national

legislation that would streamline the process of obtaining

environmental approval of logging and other clearance

projects in fire- and disease-threatened national forests;

but these efforts were caught up in the debate over the role

of commercial logging in forest restoration. By limiting

legislative action to a narrow geographical area, however,

and with the acquiescence of some influential environmental

groups and the active support of the state's congressional

delegation, Congress was able to reach agreement on a bill

that would permit logging and other measures in the Beaver

Park Roadless Area. In a rider to an unrelated appropriations

bill, Congress enacted into law essentially the terms of the

modified agreement negotiated between the Forest Service and

the Sierra Club and the Wilderness Society. See Supplemental

Appropriations Act for Further Recovery From and Response to

Terrorist Acts on the United States, Pub. L. No. 107-206,

Sec. 706, 116 Stat. 820, 864 (2002) (the ``706 Rider'' or

``Rider''). The Rider, which was signed into law on August 2,

2002, required the Forest Service to take a variety of

actions that violated the settlement agreement, see, e.g.,

id. Sec. 706(d)(5), 116 Stat. at 867, and prohibited judicial

review of those actions, id. Sec. 706(j), 116 Stat. at 868.

It also specifically referred to the settlement agreement,

and stated that the agreement should continue in effect to

the extent it was not preempted by the Rider. See id., 116

Stat. at 869.

After the Rider was passed, BCA and Mr. Brademeyer

(hereinafter referred to, jointly, as ``BCA'') went to the

federal district court in Colorado to obtain an order

requiring continued enforcement of the settlement agreement,

claiming that the 706 Rider unconstitutionally trenched on

both the executive and judicial branches. The district court

denied the motion, and BCA appealed.

Mr. Speaker, I place into the Record a memo from the Congressional Research Service that says that Congress has never passed any legislation that denies to the Federal courts the jurisdiction to adjudicate the constitutionality of an act of Congress.

Congressional Research Service

Memorandum

To: House Committee on the Judiciary, Attention: Perry

Apelbaum.

From: Johnny H. Killian, Senior Specialist, American

Constitutional Law, American Law Division.

Subject: Precedent for Congressional Bill.

This memorandum is in response to your query, respecting

H.R. 3313, now pending before the House of Representatives,

as to whether there is any precedent for enacted legislation

that would deny judicial review in any federal court of the

constitutionality of a law that Congress has enacted, whether

a law containing the jurisdictional provision or an earlier,

separate law. 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.

Mr. Speaker, I yield 1 minute to the distinguished gentleman from Oregon (Mr. Blumenauer).

Mr. Speaker, I yield 45 seconds to the distinguished gentleman from New York (Mr. Engel).

Mr. Speaker, I yield 1 minute to the distinguished gentleman from Texas (Mr. Green).

Mr. Speaker, I yield 1 minute to the distinguished gentleman from Oregon (Mr. Wu).

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

Mr. Speaker, I yield 2\1/2\ minutes to the distinguished gentleman from North Carolina (Mr. Watt).

Mr. Speaker, I yield 1 minute to the distinguished gentleman from New York (Mr. Houghton).

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

Mr. Speaker, I yield such time as she may consume to the distinguished gentlewoman from Wisconsin (Ms. Baldwin) to close on our side.

(Ms. BALDWIN asked and was given permission to revise and extend her remarks.)

Mr. Speaker, pursuant to House Resolution 734, I call up 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, and ask for its immediate consideration.

Mr. Speaker, I ask unanimous consent that the time for debate on H.R. 3313 be extended by 20 minutes, said time to be equally controlled by myself and the ranking member, the gentleman from Michigan (Mr. Conyers).

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on the bill, H.R. 3313.

Mr. Speaker, I yield 1 minute to the gentleman from Texas (Mr. DeLay), the distinguished majority leader.

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

Mr. Speaker, H.R. 3313, the Marriage Protection Act, simply prevents one or more Federal judges from striking down the provision of the Defense of Marriage Act, known as DOMA, that protects States from having to recognize same sex marriage licenses granted in other States.

This bill will prevent unelected lifetime appointed Federal judges from taking away from the States their right codified in DOMA to reject same sex marriage licenses issued elsewhere if States so choose.

DOMA passed the Congress overwhelmingly in the House by a vote of 342 to 67 and in the Senate by a vote of 85 to 14, and it was signed into law by President Clinton.

This afternoon we will hear from opponents of this bill that this is an unprecedented move to restrict the jurisdiction of the Federal courts. This is not the case.

Beginning with the first Congress, when the Judiciary Act of 1789 was passed, the jurisdiction of the Federal courts was limited; and since that time, Congress has passed enactments either expanding or restricting the jurisdiction of the Federal courts, whether it be in the area of diversity jurisdiction or elsewhere, including the interpretation of Federal laws.

Just less than 2 years ago, as a part of a supplemental appropriations bill, the Congress enacted a provision inserted by Senator Daschle of South Dakota preventing Federal court review of determinations made on the clearing of brush on Indian reservations in South Dakota. That was not called an assault on the Constitution by anyone. It was merely a determination by the Congress that these types of questions should not be reviewed judicially, and that is very clearly authorized by article III, section 2 of the Constitution.

Today, we are talking about an issue of whether the Federal courts can interpret the Defense of Marriage Act to take away the right of the State to determine its own marriage laws.

We have heard earlier in this debate that the supreme judicial court of Massachusetts in an interpretation of States rights made the determination that it was unconstitutional to deny marriage licenses, and in that one State only, to persons of the same gender who applied for such a license. What this bill will do is to prevent a Federal court from exporting the decision of a divided court in a single State to the other States.

I do not believe that when James Madison wrote the Constitution his idea of federalism was to allow a divided court in a single State to set national policy, and I sincerely doubt the Constitution would have been ratified had that been the notion that pervaded Philadelphia in 1787 and in the State legislatures elsewhere.

What we are doing here is restoring the Federal system. We are restoring a Federal system in an area that has always been conceded to be the province of the State.

Now, a lot of people will also argue against this bill saying that the danger is not there. I am here to say that the danger is real.

Just 2 days ago, a lesbian couple married in Massachusetts filed the first lawsuit in a Florida Federal court to set Federal precedent and to strike down DOMA's protection that allows States not to recognize same-sex marriage licenses issued in Massachusetts. The attorney for the plaintiffs explicitly stated he filed the case because he wants a Federal court to force every State to recognize same-sex marriage licenses issued in Massachusetts, whether the people of that State agree or not.

Now, the laws of Florida are different than the laws of Massachusetts. Florida should be allowed to make its own laws and to enforce its own laws and not to have residents who disagree with those laws run to Massachusetts and come back and force a Federal judge to recognize that license in Massachusetts.

The threat that is posed to traditional marriage by a handful of Federal judges whose decisions can have an impact across State boundaries has renewed concern about abuse of power from the Federal judiciary. This concern has roots as old and venerable as our Nation's history and is nothing new in the year 2004.

Thomas Jefferson wrote of Federal judges: ``Their power is the more dangerous as they are in office for life and not responsible to the elective control.''

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.''

This statement by Abraham Lincoln was in the wake of the Dred Scott decision, a decision of the Supreme Court which was the single most important spark that began a civil war which to this day was the most bloody conflict in our history.

A remedy to abuses by Federal judges has long been understood to lie, among other places, in Congress's ability to limit Federal court jurisdiction. H.R. 3313 would prevent a few Federal judges from rewriting State marriage recognition laws in ways that do not reflect the will of the people. Nothing in this bill denies anyone their day in court. The bill simply provides that in cases involving DOMA's protection of States rights, those cases are to be brought in State court.

The door of the courthouse is not slammed shut. The people who were married in Massachusetts and want to get recognition of their marriage elsewhere, it is the State courthouse that they go to, not the Federal courthouse.

Any Member who wishes to protect the Defense of Marriage Act's protections for States from invalidation by Federal judges should support this bill. The vast majority of Members of the House represent States that have passed laws that specifically rely on the right of the States codified in DOMA to resist same-sex marriage licenses issued out of State.

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

In The Federalist Papers, Alexander Hamilton made clear the broad nature of Congress's authority to amend Federal court decisions to remedy perceived abuse. He wrote, describing the Constitution, that ``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 the inconveniences'' which are posed by decisions of the Federal judiciary.

That understanding prevails today. 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 by article III'' of the Constitution. Even the famously liberal Justice William Brennan wrote a Supreme Court opinion that said: ``Virtually all matters that might be heard in article III Federal courts could also be left by Congress to State courts.''

The United States Constitution applies to the State courts. That was made clear in the 14th amendment.

Limiting Federal court jurisdiction to avoid abuses is not a partisan issue. Senate Minority Leader Daschle, as I have previously indicated, supported legislation enacted during the last Congress that denies the Federal court jurisdiction over the procedures governing timber projects in order to expedite forest clearing. If limiting the jurisdiction of the Federal court is good enough to protect trees, it sure ought to be good enough to protect a State's marriage policy.

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 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 appointed for life. The Constitution allows the exercise of judicial power, but it does not grant the Federal courts the 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 its powers to prevent overreaching by the other branches. H.R. 3313 does just that, and I urge my colleagues to support it.

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

Mr. Speaker, I yield 5 minutes to the gentleman from Ohio (Mr. Chabot), the distinguished chairman of the Subcommittee on the Constitution.

Mr. Speaker, I yield myself 1 minute.

Mr. Speaker, the predictions of attacks by opponents of this bill, including the gentleman from New York (Mr. Nadler), are slaps in the face of the 50 States.

The Supreme Court itself agrees in this case. In a decision this year, the Supreme Court reaffirmed that ``the whole subject of domestic relations of husband and wife, parent and child belongs to the laws of the States and not to the United States.'' That is Elk Grove Unified School District v. Newdow.

The Supreme Court also has stated, ``domestic relations are preeminently matters of State law.'' That is Mansell v. Mansell, 1989. And that ``family relations are a traditional area of State concern,'' Moore v. Sims, 1979.

So by reserving marriage law decisions to States, as this bill does, we are doing nothing more than what the Supreme Court itself has said is proper.

Mr. Speaker, I yield 2 minutes to the gentleman from Indiana (Mr. Hostettler), who is the author of the bill.

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

Mr. Speaker, I yield 3 minutes to the gentleman from Texas (Mr. Smith).

Mr. Speaker, I yield myself 30 seconds.

Mr. Speaker, the gentleman from New York has just referenced the Daschle provision in Public Law 107-206 and said it was not, ``court- stripping.'' I just want to quote what the provision of law says:

``Any action authorized by this section shall not be subject to judicial review by any court of the United States.''

That quote from the law speaks for itself.

Mr. Speaker, I yield 2 minutes to the gentleman from Alabama (Mr. Bachus).

Mr. Speaker, I yield 2 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. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I can understand the fervor of the gentlewoman from California (Ms. Pelosi), distinguished minority leader, in opposition to this legislation. She did not support the Defense of Marriage Act when it was passed in 1996 and signed by President Clinton. But to insinuate that this bill is an attack on the foundations of our government is just plain wrong.

The framers of the Constitution put in Article III, Section 2 relating to the jurisdiction of the Federal courts, inferior Federal courts and the appellate jurisdiction of the Supreme Court to provide a check by the legislative branch of government on the judicial branch of government, and we have heard quotes from Thomas Jefferson and Abraham Lincoln expressing their fears about judicial power being unchecked.

This bill is a check on judicial power, and the question is whether we should have the elected representatives of the people, in this case the Congress today and the State legislatures in the future, determining Federal marriage policy, or whether we should have a Federal judge stating that for a State to take a different position than a divided court in Massachusetts is an unconstitutional deprivation of rights.

Now, in the last 10 years or so Congress has restricted the jurisdiction of the Federal courts on numerous occasions. Much has been mentioned here about the provision that the minority leader in the Senate, Senator Daschle, put into Public Law 107-206.

The press comments about that action, which is public law today, included headlines that said: ``Daschle seeks to exempt his State; wants logging to prevent fires,'' and ``Plan to curb forest fires wins support.''

Senator Daschle told the Congress and the country there was an emergency in his State, that action needed to be taken, and we could not have judicial review. The Congress agreed. And we did not hear the hue and cry about the Constitution being undermined because of a congressional determination that there had to be some logging to prevent forest fires in South Dakota, and I think the Congress was right in agreeing with Senator Daschle in this instance.

Now, there are a number of other instances in the past 10 years where Congress has precluded Federal judicial review in cases. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was passed. That was Public Law 104-208. It precluded all judicial review over specified discretionary decisions of the Immigration and Naturalization Service. There you are involving the allegations of rights by people who are subject to deportation or other actions by the INS. Congress, when it passed that bill, and it was signed by President Clinton, said no judicial review. Did we hear at the time that that undermined the Constitution? No, we did not. It was a correct decision by the Congress to preclude judicial review on this.

After September 11, 2001, Congress passed the Terrorism Risk Insurance Act, Public Law 107-297, precluding judicial review of certifications by the Secretary of the Treasury that a terrorist event had occurred. Did anybody allege that that undermined the Constitution at the time? No way.

The Small Business Liability Relief and Brownfields Revitalization Act,

also passed in the last Congress as Public Law 107-118, precludes judicial review of hazardous waste cleanup programs.

So this has been going on all the time.

The Judiciary Act of 1789, one of the first bills passed by the first Congress, recognized that the judicial power of the United States was not unlimited and limited that judicial power. There have been expansions and contractions in the area of diversity jurisdiction of the Federal courts. Nobody has alleged that the Constitution is being undermined; and, in fact, Federal judges have come to the Congress and asked that the jurisdictional amount in diversity cases be raised so they did not have as many cases to decide.

We have heard the Supreme Court say in asbestos that there should be some way to prevent 600,000 cases from choking the Federal court dockets. I would hope that we would be able to pass some kind of asbestos litigation reform.

The fact of the matter remains that we could go on and on and on. It does not violate the Constitution. There are over 200 years of precedents in adjusting the jurisdiction of the Federal Court.

What this bill says is that if a State decides it does not want to recognize a same-sex marriage license granted in another State, there will not be Federal judicial review to do so. This is a States rights bill, and the Supreme Court has repeatedly said that marriage and family law is primarily a matter of the States, and this ensures that it will be.

Mr. Speaker, I yield 1 minute to the gentlewoman from Tennessee (Mrs. Blackburn).

Mr. Speaker, I yield 3 minutes to the gentleman from Iowa (Mr. King).

Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from Illinois (Mr. Hyde), the distinguished former chairman of the Committee on the Judiciary.

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

Mr. Speaker, I yield 3 minutes to the gentleman from Missouri (Mr. Akin).

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

Mr. Speaker, I yield to the gentleman from Iowa for purposes of a unanimous consent request.

Mr. Speaker, I yield 1 minute to the gentleman from Texas (Mr. Neugebauer).

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

Mr. Speaker, I yield 2 minutes to the gentleman from Nebraska (Mr. Osborne).

Mr. Speaker, I yield 3 minutes to the gentleman from Florida (Mr. Stearns).

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

Mr. Speaker, I yield 1 minute to the gentleman from Arizona (Mr. Franks).

Mr. Speaker, has the time for the minority expired?

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

Mr. Speaker, I believe that this debate has fulfilled the majority leader's admonition that the debate be civil. There are strongly held positions on both sides of this question, and I think that both of them have been very well articulated during the course of this debate.

I firmly believe that this bill is not only constitutional but it is also wise and necessary to prevent court decisions from further tearing apart the fabric of our society.

Forty-two years after the Supreme Court decided Marbury v. Madison, the court in the case of Cary v. Curtis in 1845 upheld the regulation of the judicial power by the Congress, and I would like to quote from that decision: ``Dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress. To deny this position would be to elevate the judicial over the legislative branch of the government, and to give to the Federal judiciary powers limited by its own discretion merely.''

This bill attempts to limit the power of the Federal judiciary to export the decision of a divided court in Massachusetts to the other 49 States which do not have laws granting marriage licenses to same-sex individuals.

The people who have been arguing against this bill, Mr. Speaker, seem to think that the State courts are second-class courts, but we believe that they are equally capable of deciding Federal constitutional questions. Nothing in H.R. 3313 denies the right of a same-sex couple married in Massachusetts to file a petition in State court to have that license and that marriage recognized within that State, and the State courts are perfectly capable of making that determination.

Somehow my colleague from Wisconsin says that this bill slams the

door of the Federal courthouse to people who wish to exercise their constitutional rights. Well, I spent a lot of time in Madison as a law student and as a State legislator, and the current Federal courthouse is just a few blocks away from the Dane County Courthouse, and there are judges there that will have all the jurisdiction they need to adjudicate the claims that the gentlewoman from Wisconsin was talking about, and those judges I think are perfectly capable of adjudicating those claims, notwithstanding the lack of confidence on the part of some of the people who have been arguing against this bill.

The real issue is the issue of marriage, and marriage is the foundation upon which any civilized society has been based, long before the United States of America was established and the Constitution was ratified in 1789.

Marriage is under attack as a result of the 4 to 3 decision of the supreme judicial court of Massachusetts. This bill does not affect what Massachusetts does with that decision.

Under this bill, it will be the legislature and the voters and the judges in Massachusetts, should they change their mind, that will determine whether that 4 to 3 decision stands; but what this bill will do is to prevent the export of that Massachusetts decision to the other 49 States that do not allow marriage licenses to be issued to same-sex couples.

I sincerely doubt that when James Madison wrote the Constitution and when the legislatures of the 13 States at that time ratified the Constitution that they ever dreamed that the Federal judiciary would be used to have a decision that has been made in a single State become national policy.

The way we prevent that from becoming national policy is by passing this bill. I urge an ``aye'' vote.

Mr. Speaker, I yield myself 6 minutes.

Mr. Speaker, I thank the gentlewoman for yielding me the customary 30 minutes, and I rise in strong opposition to this rule and to the underlying bill. The Marriage Protection Act of 2004 is quite simply a mean-spirited, discriminatory and misguided distraction. It does not belong on the floor of the House of Representatives, not when there are so many important issues facing Congress and the American people.

Nearly 900 American soldiers have now been killed in Iraq, but the House is not talking about that today. Today the bipartisan 9/11 Commission issues its report on what happened and how to prevent it from happening again, but we are not talking about that on the House floor today.

This Republican leadership has failed to pass a budget, but we are not talking about that. Today we learn that, according to the GAO, the Pentagon has spent most of the $65 billion that Congress approved for fighting the wars in Iraq and Afghanistan and is trying to find $12.3 billion more from within the Department of Defense to make it through the end of the fiscal year. We should be talking about that.

We still do not have a transportation bill. The minimum wage has not been increased in years. Millions of Americans are unemployed and without health insurance. Homeland security needs are going unmet, but we are not talking about any of that in the House of Representatives today.

According to the New York Times, conservative activist and Republican adviser Paul Weyrich's solution to the bad news coming out of Iraq was to ``change the subject'' to gay marriage. I quote, ``Ninety-nine percent of the President's base will unite behind him if he pushed the amendment,'' Mr. Weyrich said. ``It will cause Mr. Kerry no end of problems.'' As for gay Republicans whose votes Mr. Bush might lose, Mr. Weyrich wrote, ``Good riddance.''

So instead of addressing the real concerns facing American families, the leadership of this House has decided to throw their political base some red meat because we all know exactly what is going on here.

Mr. Speaker, we can at least be honest about it. Last week the Republican leadership got beat badly in the other body. Not only did they not pass the Federal Marriage Amendment, Senate Republicans could not even agree among themselves what to vote on. So the Republican leadership, including the White House, decided they needed a win on something that beats up on gay people and they needed to do it fast, so here we are. They could not amend the Constitution last week so they are trying to desecrate and circumvent the Constitution this week.

The intent of this bill is quite clear, to close the door to the Federal courthouse for an entire group of American citizens simply because of their sexual orientation. It is enough to take my breath away. One of the most fundamental, sacred principles of our system is that every single American should have access to equal justice under the law, not some Americans, not most Americans, not just straight Americans, but all Americans. But not any more. Not under this bill.

Under this bill for the first time in our long history, a person can be denied access to the Federal courts when that person claims that a Federal statute violates the Constitution.

Further, this bill takes 200 years of jurisprudence based on the separation of powers and throws it in the trash.

Why? Because of the latest craze in Republican fund-raising appeals, the dreaded ``activist judges.'' To all of those listening to the debate today, I would encourage you to count how many times the phrase ``activist judges'' is thrown around. Make sure you have your calculator.

The problem is that the Republican leadership only goes after the so- called activist judges they disagree with. They had no problem in activist judges in Bush v. Gore. And make no mistake about it, if this bill passes its proponents will be back for more. Every time there is a court decision they do not like, they will attempt to prohibit the courts from exercising their constitutional oversight. Other issues will be on the table, civil rights and civil liberties, voting rights, choice, environmental protection, worker protections, all will be at risk if a political majority in Congress disagrees with a Federal court decision. This bill would set a dangerous, dangerous precedent.

Finally, we hear a lot of rhetoric today from supporters of this bill protesting that they are not anti-gay, just pro-marriage. Well, the supporters of this bill have even named it the Marriage Protection Act. Mr. Speaker, I thank the other side, but my marriage does not need protection, and certainly not from the Republican leadership of this House.

This bill seeks to solve a problem that does not exist. There is no urgency, no credible court case challenging DOMA.

So let us work on the issues that matter most to our constituents. Let us tackle health care and education and homeland security and jobs, let us not change the subject for political reasons, let us not desecrate the Constitution.

Mr. Speaker, I urge my colleagues to do the right thing. Cast your vote with an eye toward being on the right side of history. Look further than tomorrow's headlines, think about more than 30 minutes from now, think about 30 years from now. Remember that Members of Congress opposed the 1964 Civil Rights Act and the Voting Rights Act. Remember that Members of Congress denounced a decision in Brown v. Board of Education in part because of activist judges. History has not been kind to them.

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

Mr. Speaker, I yield 2\1/2\ minutes to the gentlewoman from Texas (Ms. Jackson-Lee), a strong defender of the United States Constitution.

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

Mr. Speaker, I yield 2\1/2\ minutes to the gentleman from New York (Mr. Weiner).

Mr. Speaker, I yield 2 minutes to the gentleman from Washington (Mr. Inslee).

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

Mr. Speaker, I yield 30 seconds to the gentleman from New York (Mr. Weiner).

Mr. Speaker, I yield 2 minutes to the gentleman from Oregon (Mr. Blumenauer).

Mr. Speaker, after the gentleman's comments, in his concern for activist Federal judges, I just want to state for the record that seven of the Supreme Court justices right now have been appointed by Republican Presidents, and pretty conservative Republican Presidents at that.

I yield 30 seconds to the gentleman from New York (Mr. Weiner).

Mr. Speaker, I yield 2\1/2\ minutes to the distinguished gentleman from Massachusetts (Mr. Delahunt).

Mr. Speaker, I yield 2 minutes to the gentlewoman from New York (Mrs. Maloney).

Mr. Speaker, I yield 2 minutes to the gentlewoman from California (Ms. Lofgren).

Mr. Speaker, I yield 2 minutes to the gentleman from Massachusetts (Mr. Markey).

Mr. Speaker, I yield 2 minutes to the gentlewoman from the District of Columbia (Ms. Norton).

Mr. Speaker, can I inquire of the time on both sides.

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

Mr. Speaker, can I inquire of the gentlewoman how many more speakers she has on her side.

Mr. Speaker, I yield myself the remaining time.

Mr. Speaker, let me reiterate what this bill is all about. It is a mean-spirited, unconstitutional, dangerous distraction. No matter what Members may think about gay marriage, the issue here today is whether or not we will take away people's fundamental constitutional rights.

Gay men and women pay taxes, serve in the United States Congress and in legislatures across the country, serve in our military, raise families that participate in the political process. The idea that they should be treated as second-class citizens and stripped of their constitutional rights is not only wrong, it is appalling.

Now, I am from Massachusetts and my colleagues will hear supporters of this bill talking today about the alleged catastrophe that has occurred in my State in the last few months; but you know what, Mr. Speaker, the world did not come to an end in Massachusetts when the State Supreme Court made its ruling. People got up and went to work and took their kids to school and paid their bills and lived their lives. The world kept spinning on its axis.

In the end, I think that is what is driving the supporters of this bill crazy. The outrage, the mass hysteria, the political momentum they expected from this issue just have not materialized. The American people are a lot smarter and a lot more tolerant and a lot more reasonable than the Republican leadership gives them credit for, which is why, Mr. Speaker, even if this bill passes today, I still have hope.

Mr. Speaker, every Member of this House took an oath that they would uphold and defend the Constitution of the United States. I hope we will do that today. I urge all my colleagues to vote ``no'' on this bill.

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

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

Mr. Speaker, I begin by thanking the leader and the chairman of the Committee on the Judiciary, the gentleman from Wisconsin (Mr. Sensenbrenner), for allowing us to add 10 minutes on each side to this debate.

Now, let us begin with the nature of H.R. 3313. This is not about marriage. This is about whether the third branch of government, the judiciary, since Marbury v. Madison will continue to be the arbiter of what is constitutional in the American system.

So I begin by pointing out that to deny any branch, any issue the right to full judicial review would bring about more chaos than even the proponent of this change, which is patently unconstitutional, would want. The legislation is the first of its kind that has ever been brought to the floor of the House of Representatives.

Never have we ever tried to do something as breathtaking as taking away the right of a Federal appeal when it is clearly permissive not even to go to the Supreme Court. We had an amendment that would have allowed the Supreme Court at least to take precedent. It was voted down by the conservatives in the Committee on the Judiciary. This would be the only instance in the history of the Congress that we have totally precluded the Federal courts from considering the constitutionality of Federal legislation.

The other body only last week decided this question the same way that I pray we will today. They turned it back. It was considered too unconstitutional and too unprecedented. Now, make no mistake about it, were the bill to be enacted, the chaos that would ensue from 50 States plus the District of Columbia issuing conflicting opinions on the marriage law would be irrational.

Why, I ask my colleagues, and I will yield, why would anyone want to create out of this rational body a law that would prevent the Federal courts from deciding cases rather than allowing anywhere up to 50, 51 different decisions? I yield to anyone in this body.

So I want to urge to you that the reason is that we are actually stripping the Federal courts from jurisdiction that has historically been theirs. We have these branches in the judiciary. Now, what would have happened had conservatives decided during the civil rights battles of the sixties to have decided that we would just take the decisions away from the courts, or Brown v. The Board or any of the tests against the Civil Rights Act, the Voter Rights Act, would have had nowhere to go had someone come across this incredibly weird decision.

So I rise in strong opposition to this. I urge the Members, as the leader who preceded me said, may rationally analyze where stripping the Federal courts from any one single issue, where that would lead this great Constitution and democracy of over 209 years.

I rise in strong opposition to this unconstitutional, discriminatory, divisive, and unprecedented bill. The only reason we are debating today is that the President is in danger of losing his job and wants to detract attention from

his failure in Iraq and to bolster support amongst right-wing conservatives.

In the past few weeks, I am sorry to say the death toll of U.S.-led forces in Iraq topped 1,000. The bipartisan 9-11 Commission found, contrary to the President's implications, that there was no ``collaborative relationship'' between Iraq and Al Qaeda. And we all know that no weapons of mass destruction have been found in Iraq.

What did the President do about it? He followed the advice of conservative organizers and ``changed the subject'' so he could have a chance of winning in November.

That is why we are here. The President and the Republican leadership know that a constitutional amendment could not pass; in fact, it failed the Senate last week. Instead, they are moving this divisive and unconstitutional bill, which proposes to strip all federal courts and the Supreme Court from reviewing not just one but two acts of Congress.

I cannot believe that proponents of this bill understand its implications. Imagine if, in the early 1950's, a conservative Congress had succeeded in stripping the federal courts of jurisdiction to hear segregation cases. The Supreme Court would never have issued its historic Brown v. Board of Education decision declaring that separate was not permitted in education.

Alternatively, consider the implications if a more liberal Congress opted to prevent federal courts from hearing any Second Amendment cases. How would my conservative colleagues like it if the California or the Massachusetts Supreme Court was the final arbiter of the right to bear arms in their states? Would they think it fair that a single class of citizens--gun owners--were excluded from appeals to our federal judicial system?

Yet that is what H.R. 3313 would do--deny any judicial review, even by the Supreme Court--of any case brought challenging the constitutionality of the Defense of Marriage Act, which clarifies that states need not give full faith and credit to same sex marriages entered into in other states. This legislation would be the first and only instance in which Congress had totally precluded the federal courts from considering the constitutionality of federal legislation.

This runs totally contrary to our bedrock principles. Article III of the Constitution says ``the judicial Power of the United States, shall be vested in one supreme Court.'' And in the more than 200 years that have passed since Marbury v. Madison, judicial review has served as the very touchstone of our constitutional system and our democracy.

It is no wonder that, when court stripping legislation was proposed in the 1970's concerning school prayer, abortion, and busing, conservatives found the proposals to be so repugnant. Then-Yale Law School Professor Robert Bork wrote of the bills, ``you'd have 50 different constitutions running around out there, and I'm not sure even conservatives would like the results.'' Senator Barry Goldwater stated that the ``frontal assault on the independence of the Federal courts is a dangerous blow to the foundations of a free society'' and warned ``there is no clear or coherent standard to define why we shall control the Court in one area but not another.''

Today, the stakes are no less significant. As emotionally charged and politicized as the issue of same sex marriage has become, we should not use that controversy to permanently damage the courts, the Constitution, and the Congress. At a time when it is more important than ever that our Nation stand out as a beacon of freedom, we must not countenance a bill that undermines the very protector of those freedoms--our independent federal judiciary.

The bill is even more misguided considering that it was a state court, not a federal court, that issued an opinion that permitted same sex marriage. Further, no federal court has even opined on the constitutionality of DOMA.

Make no mistake about it. If this bill is enacted, chaos will ensue when the fifty states and the District of Columbia issue conflicting opinions on DOMA. Then my colleagues on the other side will be clamoring for review by a Supreme Court that has seven Republican appointees and two Democratic appointees.

I urge my colleagues to vote ``no'' on this legislation.

Congressional Research Service.

Memorandum

To: House Committee on the Judiciary, Attention: Perry

Apelbaum.

From: Johnny H. Killian, Senior Specialist, American

Constitutional Law, American Law Division.

Subject: Precedent for Congressional Bill.

This memorandum is in response to your query, respecting

H.R. 3313, now pending before the House of Representatives,

as to whether there is any precedent for enacted legislation

that would deny judicial review in any federal court of the

constitutionary of a law that Congress has enacted, whether a

law containing the jurisdictional provision or an earlier,

separate law. 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.

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

Mr. Speaker, I thank the gentlewoman for yielding me this time.

Mr. Speaker, I rise to support this rule, because this debate must be removed from the courts who are filled with unelected, lifetime judges, and the debate should be moved from those courts back into the court of the people, back into the courthouse square instead of in the courthouse.

Mr. Speaker, Congress has the constitutional right to be involved in this process, and I can tell that the debate has already covered that, so I am going to limit my comments. But the Constitution declares that Congress will be involved in making these sorts of decisions in determining what the Federal courts will and will not hear. It was, in fact, that judicial review process that Judge Marshall made in Marbury v. Madison that began the process of judicial review that is not even called for in the Constitution, and judicial review which has extended the power of the courts beyond, beyond, and beyond where the original Framers of the Constitution intended for the courts to have power and, in doing so, have eroded the power of the legislative branch.

Mr. Speaker, we have encountered in our history a very clear, similar case, exactly paralleling what we are doing today. We had a time in our history when there were definitions that the courts began to give, such as the definition of slavery.

It was the Supreme Court that decided in the Dred Scott decision that the issue of slavery involved the will of the minority and said that the will of the minority could not be subjected to the will of the majority. Of course, the courts at that time did a small sleight of hand because the minority that they were talking about was really the minority slave holders, the owners of slaves, and they overlooked the rights of the minority of the slaves themselves. We fought a Civil War over the Supreme Court's definitions at that point.

Instead of really understanding that the will of the people had spoken and the ensuing constitutional amendments, the courts later, in the Plessy v. Ferguson case, established the Separate but Equal Doctrine that again was offensive to the multitudes of people in this country.

Right now we have a Supreme Court that is willing to declare its will on the people no matter what the people say, and I think that the rule is extremely important here, because it begins to take that right back from the Supreme Court and put the discussion in this body who represents and can be elected and unelected by the people. The Supreme Court cannot be unelected, ever, and it is a very critical element of this argument.

But to those people who say this is an emotional issue, they are exactly correct. Our office spent over 20 hours discussing the issue, and we have people inside our office who were on both sides of the issue. But at the end of the day, nature has described what a marriage is. Law only fundamentally defines what nature has already defined: that a man and a woman come together, they create life, and it is the only life-creating institution and the only life-creating relationship in the world, and then the bonding process of that keeps them together in order to nurture and to grow the children and the offspring.

Mr. Speaker, that is the relationship that people are asking about, and it is a good question. Should gays be allowed to marry? Well, yes, they can, and they should be allowed to marry. But marriage, by definition of nature, is between a man and a woman, and if they are going to marry, they have to marry a man or a woman. The discussion is absolutely centered around this question, and it is not a matter of right and it is not a matter of discrimination.

But what the other side of the aisle wants to do is to redefine marriage for all people. It is the redefinition that is wrong, because there is no civil rights abridgement here. Many black leaders are speaking in favor of this. This is the will of the people saying we must have a discussion among the people as to what is marriage and how it is defined.

For these reasons, I support the rule, Mr. Speaker.

Mr. Speaker, again, I thank the gentlewoman for yielding me this time and support the rule.

The comments about conservative-leaning courts just fly in the face of actual fact. This court in Lawrence v. Texas was not exactly right- leaning, and that is a fairly recent decision. In fact, the case of the Congress over being willing to declare what the courts can and cannot look at is a very recent occurrence, as our friends on the other side of the aisle seem to have forgotten that Mr. Daschle himself wrote into the legislation that the court cannot even oversee the removal of shrubbery and scrub brush from the national forest in South Dakota.

And certainly if the Supreme Court and the courts can be held back from considering anything in the management of those forests, it might just reach the threshold that the American people should have the right to say that the Federal courts would not be the last point of reference there.

I would go back again to my friend's comment that quoting the Dred Scott decision is like quoting from the Ku Klux Klan civil rights manual. I think that the mixing of conversations there was certainly not based on fact. The Dred Scott decision was a decision by not a Republican court to establish slavery as the legitimate form of activity in this country. The Dred Scott decision was the one that authorized and made slavery legal, and it was against the will of the people that that was done. And it is similar to the case now where the courts would operate against the will of the people.

Mr. Speaker, I thank the gentlewoman for yielding me time.

I rise to support the rule and the underlying bill. We have got several comments from our friends on the other side of the aisle that definitely demand a closer look. First, the statement that this side of the aisle is bringing this highly charged issue up right now as an electionary issue. I am sorry, but it was not this side of the body that began to cause people to go down in acts of defiance of the law, began to get licenses and get marriages approved that were currently against the law. It was not this side of the aisle that brought those up. We are simply responding that now that the issue has come up, we need to deal with it.

Also, there was a comment that we are diminishing democracy, and absolutely the opposite thing is occurring. We are empowering the democracy and we are empowering the people. But the other side is working under the very knowledge and the very truth that if they can find one court and four judges they can create law in this country. That is not empowering democracy. This bill and this rule empower democracy.

Mr. Speaker, wrapping up my comments for this part of the debate, I again rise to support the rule and the underlying bill.

This bill does not favor or disfavor any particular result or any group of people. It is motivated by the 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 out of State will hold.

This bill does not eliminate any group from the Constitution, but instead, recognizes the 10th amendment of the Constitution which declares that all rights are reserved for the States except those which are specifically given to the Federal Government.

I would comment that the observations of the last gentleman are completely contrary to the 10th amendment of the Constitution.