July 22,2004
Editor's Note: Article III, Section 2, paragraph 2 of The Constitution of the United States states: "In all cases affecting Ambassadors, other public ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." HR 3313 as an attempt to stop the courts from legislating new "law" pertaining to same-sex "marriage" which no state legislature has ever approved.
Mr. CANNON. Mr. Speaker, today the House of Representatives is acting well within its Constitutional authority in considering H.R. 3313. Currently, many state courts including those in Massachusetts have begun the process of defining marriage through judicial decree. Because of the Constitution's Full Faith and Credit Clause, this judicial activism may be forced upon all the remaining states, including Utah, undermining the traditional definition of marriage and family.
These and other state and federal courts imperial judges are acting in an extra-constitutional fashion and assuming the powers of legislatures.
In Massachusetts, the Supreme Judicial Court of Massachusetts ruled on a 4-3 vote in Goodridge v. Massachusetts Dep't of Health, 798 N.E. 2d 941 (Mass. 2003) that the state's refusal to issue marriage licenses to same-sex couples violated the state constitution. The court found that the traditional definition of marriage, the same definition used throughout history, was evidence of ``invidious'' discrimination. In a follow-up opinion, these same judges stated the current definition of marriage in Massachusetts was a ``stain'' on the state constitution and needed to be ``eradicated''.
On May 17th of this year, the Goodridge decision went into effect and the state of Massachusetts began issuing same-sex marriage licenses. This new and expanded definition of marriage opens many more questions than it answers. What happens if these individuals move to other states after they are married? What benefits and rights must the new jurisdiction accommodate and what other obligations will be thrust on a jurisdiction that does not recognize such unions?
These are difficult and divisive questions, and this is why representatives elected by the people and not the courts should decide them. Those opposed to an open and deliberative debate and public votes by elected legislators have preferred judicial activism instead.
The Defense of Marriage Act, which passed both Houses of Congress and was signed into law by President Clinton, is central to our debate. DOMA was passed to prevent one state from imposing its family law policy on another state. Historically, family law has always been left to the states. However, scholars on both sides of the ideological aisle have stated their Constitutional concerns with the language of DOMA. If DOMA challenges are successful, then one case in one court could conceivably set social policy for the nation.
When the judicial branch loses its moral compass, it is the responsibility of the Congress to exert its authority to keep the judicial branch in check. In this particular circumstance, the Congress has two options. The first is a Constitutional Amendment. The second is assertion of its authority in the Constitution under Article III, Section 2 clause 2 and ``regulate'' the jurisdiction of the federal courts and make ``exceptions'' to their jurisdiction.
I have reservations about amending the U.S. Constitution. But that may be our last resort. As President Bush stated, ``If judges insist on forcing their arbitrary will upon the people, the only alternative left to the people would be the constitutional process.'' I agree with President Bush.
We are debating H.R. 3313, which limits the role of federal courts. This legislation states, ``No court created by an act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to
the interpretation of, or the validity under the Constitution of, section 1738C.'' The referenced section relates to the DOMA language allowing states to opt to not recognize the same-sex marriages of another state. HR 3313 is simply Congress reaffirming its intent under DOMA and disallowing judicial review.
Some argue that Congress should not limit the jurisdiction of the federal courts. I would like to remind them of the provision Senator Daschle inserted into a Defense Appropriations bill in the 107th Congress that exempted all forest management projects in the Black Hills National Forest from any further NEPA requirements, from administrative appeals, from Endangered Species Act Section 7 consultation procedures, from review by any court, and from court ordered injunctions. I agreed with Senator Daschle and supported this legislation not only because it set a precedent for good forest policy, but also because it is a precedent for Congress's authority to limit the jurisdiction of the courts.
Chief Justice Marshall inferred in Marbury v. Madison that if the Supreme Court identifies a conflict between a constitutional provision and a congressional statute, the Court has the authority to declare the state unconstitutional. It is clear that Congress has the duty and responsibility to make sure that no act promulgated by it exceeds the Constitution.
In this particular case, the Congress is exerting its explicit authority to limit the jurisdiction of the Courts. This cannot be held unconstitutional by the federal courts or the Supreme Court because they cannot hear it. They have no jurisdiction because Congress withholds jurisdiction. It is the natural check on the courts' power that the founding fathers built into our system of checks and balances.
I say with all sincerity to those opposed to this legislation, the spirit of the law is explicit. State family law is for the states to decide. The Supreme Court in a 2004 decision, Elk Grove Unified School District v. Newdow, 124 S. Ct. 2301, 2309 (2004) (citing and quoting In re Burrus, 136 U.S. 586, 593-94 (1890)), reaffirmed this presumption by stating, ``the whole subject of domestic relations ..... belongs to the laws of the State and not to the laws of the United States.'' If the opponents of this legislation deny this reaffirmation of the law, a Constitutional Amendment to protect the definition of marriage is the only alternative.
I urge a ``yes'' vote.
To Comment: Mary Mostert