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“MARRIAGE PROTECTION ACT OF 2004” mentioning the U.S. Dept. of Justice was published in the Extensions of Remarks section on pages E1521-E1522 on Sept. 8, 2004.
The publication is reproduced in full below:
MARRIAGE PROTECTION ACT OF 2004
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speech of
HON. DENNIS MOORE
of kansas
in the house of representatives
Thursday, July 22, 2004
Mr. MOORE. Mr. Speaker, I rise in opposition to H.R. 3313, which would bar federal courts, including the Supreme Court, from hearing cases related to provisions in the Defense of Marriage Act [P.L. 104-
199]. Under that law, the definition of marriage as a union between a man and a woman extends to all aspects of federal law and prevents states from being forced to recognize same-sex marriages from other states. In addition to P.L. 104-199, 38 states--including Kansas--have adopted laws limiting marriage to a man and a woman. H.R. 3313 would not bar state courts from hearing cases related to same sex marriage.
While Congress has broad authority under Article III of our Constitution to regulate the jurisdiction, procedures and remedies available in state and federal courts, this power is generally not used as a means to affect substantive law. Over the years, various proposals have been made--but not enacted--to limit the jurisdiction of federal courts to hear cases regarding particular, controversial areas of constitutional law, such as school busing, abortion, prayer in school, and recitation of the Pledge of Allegiance. Congress' Article III authority is generally used to address broad issues of court efficiency and resource allocation, rather than to allocate judicial power in a way that affects or influences the result in cases concerning specific constitutional issues. Limiting the jurisdiction of any court for any particular class of cases raises questions regarding both the separation of powers doctrine and the Equal Protection Clause of our Constitution.
Additionally, it is not settled doctrine that Congress has the power to eliminate Supreme Court review of constitutional questions. As President Reagan's first attorney general, William French Smith, noted:
``The integrity of our system of federal law depends upon a single court of last resort having a final say on the resolution of federal questions. The ultimate result of depriving the Supreme Court of jurisdiction over a class of cases would be that federal law would vary in its impact among the inferior courts. State courts could reach disparate conclusions on identical questions of law and the Supreme Court would not be able to resolve the inevitable conflicts.''
For all of these reasons, Mr. Speaker, enactment of H.R. 3313 would be unwise and quite possibly unconstitutional. I agree with the late Senator Barry Goldwater who opposed similar ``court stripping'' bills during his Senate service, stating that ``the frontal assault on the independence of the Federal courts is a dangerous blow to the foundations of a free society.''
I noted with great interest a letter I recently received from former U.S. Representative Bob Barr, who authored the Defense of Marriage Act in 1996. In his correspondence to members of the House, dated July 19, 2004, former Congressman Barr urged the House to defeat H.R. 3313, stating that it will ``needlessly set a dangerous precedent for future Congresses that might want to protect unconstitutional legislation from judicial review. . . . The fundamental protections afforded by the Constitution would be rendered meaningless if others follow the path set by H.R. 3313.''
Former Congressman Barr also notes in his letter that, ``where I differ with the supporters of H.R. 3313 is in my confidence that the Supreme Court will not invalidate DOMA [the Defense of Marriage Act]. During the lengthy consideration of DOMA, the House of Representatives heard detailed testimony on the constitutionality of DOMA. A parade of legal experts--including the Justice Department--determined that DOMA is fully constitutional. Although there are a few naysayers and wishful thinkers who opined that DOMA is unconstitutional, the overwhelming weight of authority was clear that DOMA is constitutional. Based on the exhaustive review of these opinions, Congress overwhelmingly passed DOMA and it was signed into law by President Clinton. DOMA remains good law. It is a sound and valid exercise of congressional authority, pursuant to the Full Faith and Credit Clause of the Constitution.''
Further, former Congressman Barr comments in his letter that
``because H.R. 3313 does not strip state courts of jurisdiction to hear challenges to the cross-state recognition section of DOMA, the result will be that each of the 50 state supreme courts will be the final authority on the constitutionality of a federal law. The chaotic result could be 50 different interpretations reached by state supreme courts, with no possibility of the U.S. Supreme Court reversing any incorrect interpretation of the federal DOMA. The potential for mischief by these courts is obvious. Ironically, I fear an increased likelihood of an adverse decision on DOMA's constitutionality if H.R. 3313 becomes law.''
Mr. Speaker, for all of these reasons, H.R. 3313 is neither good law nor good policy. My personal belief is that marriage is a union between a man and a woman, but that the regulation of marriage should be left to the states. Amending the Constitution of the United States is a serious matter not to be taken lightly and neither is enactment of legislation that would alter the careful balance of power and responsibility that the founders of our nation apportioned between the three branches of the federal government. I oppose H.R. 3313.
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