'Court-Stripping' Bill Passes House With White House Support

Church & State, Sep 2004

A Religious Right-spawned measure that would strip the federal courts of their ability to hear challenges to a federal law barring same-sex marriages passed the House of Representatives July 22.

The Marriage Protection Act passed 233-194 with strong Religious Right support. It also enjoyed a big push from the White House.

"The president believes that no state should be forced to recognize the samesex marriage entered into in another state," Tim Goeglein, a White House religious liaison, told AgapePress. Goeglein said Bush "strongly supports" the Marriage Protection Act and will continue to advocate for a constitutional amendment barring same-sex marriage.

The day of the vote, the White House issued a one-paragraph statement reiterating its support for the bill.

Americans United condemned the House vote, saying it is clearly designed to undercut the constitutional role of the federal courts.

The proposal, H.R.3313, was introduced by Rep. John Hostettler (R-Ind.), a key Religious Right House ally. It would strip the federal courts of jurisdiction over challenges to the constitutionality of the Defense of Marriage Act (DOMA), a federal law passed in 1996 that defines marriage as the union of a man and woman.

"This is a shameful day in congressional history," said Barry W. Lynn, Americans United executive director. "This bill is a radical Religious Right scheme meant to override the independence of the judiciary. I am shocked that the House would pass it."

Continued Lynn, "If this bill became law, it would provoke a constitutional crisis. The federal courts have played a key role in ensuring the rights of minorities, and some people apparently don't like that fact. I am confident that the Senate will not allow this bill to become law."

In a letter to House members, Lynn wrote that the measure is "an extreme, unwise, and unconstitutional proposal that would undermine the crucial separation of powers at the heart of our government, as well as thwart the independence of federal courts."

Lynn said he is concerned that the success of H.R.3313 could pave the way for a slew of other bills currently floating in Congress aimed at stripping the federal courts of jurisdiction over religious liberty cases, such as those involving school prayer or government displays of the Ten Commandments.

Religious Right leaders insist that the measure is constitutional, but the Congressional Research Service, a branch of the Library of Congress that provides non-partisan research to members of Congress, said there is no precedent for a bill like it.

Many constitutional scholars argue the bill is clearly unconstitutional, pointing out that if Congress is given the power to strip the courts of their ability to hear certain types of cases, the Bill of Rights could quickly become eviscerated.

Some Religious Right groups see the court-stripping bill as a weak solution, since the measure is of dubious constitutionality and, if passed, could be repealed in the future.

"We support any measure that will try to rein in the judiciary, but we support it understanding that going after judicial tyranny with legislation is like hunting a hungry tiger with a BB gun," Richard Land, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission, said. "An amendment is going after the tiger of judicial tyranny with an elephant rifle."