Protecting Marriage
By Paul M. Weyrich

The fight to preserve marriage as solely a covenant between a man and a woman continues. While the Constitutional amendment has stalled, Rep. John Hostettler (R-IN)has introduced H.R. 3313 -- the Marriage Protection Act (MPA), which has already passed the House Judiciary Committee by a 21 to 13 vote.

This bill states:

No court created by 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 [the provision of the Federal Defense of Marriage Act that says "No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."].

In other words, enact this bill into law, and judicial activists on the Federal bench will not have jurisdiction to knock down the Defense of Marriage Act's Full Faith and Credit Limitations. No State will be obligated to accept another's same-sex marriage license.

The Federal Defense of Marriage Act (DOMA) was passed by overwhelming margins in the House and Senate. Nevertheless, do not be surprised if a Federal Judge tries striking it down.

Indeed, the Supreme Court in its recent Lawrence v. Texas decision indicates that there may soon come a day when a Federal Court attempts to strike down DOMA. Justice Kennedy stated in his opinion that "our laws and tradition afford Constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education" and that the Constitution insists upon respect being granted for "the autonomy of the person in making these choices."

Given that Justice Kennedy's mindset is shared by many of his brethren in the Federal Judiciary, conservatives have good reason to support the MPA. This legislation will tell the Federal Courts that they are forbidden from striking down DOMA's provision recognizing the right of States to refrain from recognizing another State's same-sex marriage licenses. None other than Abraham Lincoln claimed 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."

Rep. Hostettler is on the side of the Constitution in this battle.

The Constitution states in Article III, Section 2, clause 2 that "[i]n all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases... 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."

Even the Supreme Court has admitted that Congress possesses the power to limit the jurisdictions of the Federal courts. Earlier this year, the Supreme Court maintained in its Elk Grove Unified School District v. Newdow decision "[t]he whole subject of domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States."

All this Act will do is to ensure that the laws of the States will remain just that. No Federal Judge will be able to rewrite a State's laws regarding same-sex marriage. It is essential that we have the Marriage Protection Act on the books while we continue working to convince Congress to refer the Federal Marriage Amendment (aka Marriage Protection Amendment) to the States and then strive to have the States ratify it.

True, we lost a battle in the Senate -- not the war. We knew going in that it would be a tough fight to win. However, we now know who's with us and who's against us. Many conservatives will remember the scorecard on Election Day. You can count on our coming back next year, fighting to have the Senate pass the Federal Marriage Amendment. This year, both the House and the Senate can still pass Rep. Hostettler's Marriage Protection Act. The sooner, the better. Stop the Federal Judiciary from meddling with DOMA.

After the Judiciary Committee voted on the Marriage Protection Act, Chairman James F. Sensenbrenner, (R-WI) remarked that Senate Minority Leader Tom Daschle, (D-SD) had placed language into legislation enacted during the last Congress to deny Federal Courts jurisdiction over methods of timber clearing. "If limiting the jurisdiction of the federal courts is good enough to protect trees, shouldn't it be good enough to protect a State's marriage policy?" asked Sensenbrenner.

Paul M. Weyrich is Chairman and CEO of the Free Congress Foundation