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July 25, 2004 - Stopping the Activist Judges from Destroying Life As We Know It

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A bill was passed by the US House of Representatives this week that singles out one specific class of citizens and denies them access to the federal courts to defend their civil rights.


No it wasn’t Jews or Scientologists in this special class. Nor was it black folks, nor guys named Dwayne from Ohio. And it wasn’t uppity women named Hillary or Whoopi.

Here’s the deal:

Bill preventing federal courts from legalizing same-sex 'marriage' passes House, 233-194
Michael Foust, Baptist Press News of the Southern Baptist Convention, Thursday, July 22, 2004

The bare-bones story -


WASHINGTON (BP)--The House of Representatives passed a bill July 22 that prevents federal courts from legalizing same-sex "marriage" nationwide, giving traditionalists a significant victory just one week after the Senate blocked a vote on a constitutional marriage amendment.

The bill, dubbed the Marriage Protection Act, passed on a mostly party-line vote of 233-194. It faces an uncertain future in the Senate but has the support of President Bush.

The bill protects states by preventing federal courts -- including the Supreme Court -- from reviewing the Defense of Marriage Act, the 1996 law that gives individual states the option of not recognizing another state's same-sex "marriages" and prevents the federal government from recognizing homosexual "marriage."


Got it?  Pass a law that says the courts have no authority to review a particular law.  Pretty clever!  Bush is happy with it.



… The major pro-family groups -- including the Family Research Council, the Southern Baptist Ethics & Religious Liberty Commission and Concerned Women for America -- supported the bill as a short-term solution until a constitutional amendment can be passed.

"This should be a warning to politicians everywhere that this is an issue that is not going away and it is an issue where there is tremendous interest and conviction," ERLC President Richard Land told Baptist Press.

The bill's passage, Land said, "furthers the momentum" of the defense of marriage movement.

"It does send a message to the judiciary that people are really getting fed up with their attempts to become our unelected rulers," he said.

But Land said a constitutional marriage amendment is still needed.


Of course.  One suspects this odd new law, should it move to the Senate, isn’t going to fly, no matter how hard Bush lobbies for it.

The legal grounds?


… The bill's chief sponsor, Rep. John Hostettler, R.-Ind., pointed to Article III, Section 2 of the U.S. Constitution, which states in part: "[T]he Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." Section 1 states that Congress "ordain[s]" and "establish[es]" the lower courts.

Hostettler also pointed to Article I, Section 8, and Article IV, Section 1.

"The United States Constitution is very clear -- Congress has the authority to create inferior federal courts," Hostettler said. "Congress [also] has the authority to make exceptions and regulations with regard to all of the appellate cases that come before the Supreme Court."


Really?  I suppose, bit it seems a stretch.

A bit of background from Kevin Drum –


This section of the constitution is beloved of wingnuts everywhere who dream of stripping the Supreme Court of jurisdiction over a wide range of pet issues: abortion, Jim Crow, school prayer, you name it. Pass a law that includes an Article 3, Section 2 exemption, and bingo! The Supreme Court can't declare it unconstitutional. At any given time, there are usually at least half a dozen Article 3, Section 2 bills languishing in various committees.

Normally that's exactly where they stay, because cooler heads — even those who basically agree with the wingnuts — realize that opening this particular Pandora's Box is a very, very bad idea. After all, once you exempt one thing, where will it stop? You'd be starting a Niagara sized pissing contest.

(Plus there's no telling if the Supreme Court would recognize such an exemption anyway, since it would effectively do away with judicial review.)

Still, the wingnuts keep dreaming…


Obviously the right, conservative flip side of "I have a dream…."

BP also reports that John Dingell, Democrat of Michigan called the bill an "extraordinary piece of arrogance."  And Jim McGovern, Democrat of Massachusetts called it a "mean-spirited, discriminatory and misguide distraction" and said it violated the "separation of powers."  Yeah, but Jim is from evil godless Massachusetts after all.  Jim also added - "Under this bill, for the first time in our long history, a person could be denied access to the federal courts when that person claims that a federal statute violates the Constitution," McGovern said.

Yeah, Jim, but that person is a flaming queen – so what’s the problem?

This detail from the Saint Louis Post-Dispatch -


Critics contend the bill is politically motivated and unconstitutional.

Akin called preventing same-sex marriage "central to the survival of society." He argued that courts frequently overstep their authority when deciding cases related to marriage laws. "They do much better when they do their job, which is to read the Constitution and rule strictly on what the Constitution says," he said.

But William and Mary law school professor Michael Gerhardt, who testified before Congress about Akin's bill last month, said he believes it violates the Constitution's equal protection clause.

"You're saying in effect that these people can't have access to the federal courts but everybody else can, and I just think that kind of classification would not likely be upheld," Gerhardt said.


Yep. It would probably not be upheld. But Bush does want it.

Andrews Sullivan, the Republican gay writer, who says he’s pro-war and conservative as they come, gets on his high horse about this -


The bill that passed yesterday singles out gay citizens and denies them access to the federal courts to defend their civil rights. The arguments are so transparent. Does the Defense of Marriage Act violate the constitution? Then amend the constitution, the Republicans say. If you cannot amend the constitution, knee-cap the courts. And all this is defended with the rhetoric of a man like James Sensenbrenner, who declared, "Marriage is under attack!" By whom, sir? All gay people want is to join civil marriage, and be a part of their own families. To describe this deep human need, this conservative impulse, as an "attack" on an institution revered by many homosexuals and their families is itself a piece of callous demonization. And the precedent is chilling. If gays can be singled out and denied access to the courts, why not other minorities? Blacks? Hispanics? If the Republicans can do this to exclude gays from access to the courts, why couldn't Democrats one day do it to prevent conservative Christians? I loved this quote from a news story:

The nonpartisan Congressional Research Service said it could find no precedent for Congress passing a law to limit federal courts from ruling on the constitutionality of another law, although Democrats said opponents of civil rights legislation tried to do the same thing.

Yes, today's Republicans are now the inheritors of those Democrats who did all they could to prevent African-Americans from winning their civil rights.

A QUESTION OF RESPECT: Here's a simple question: Can you think of any other minority targeted by a single party for discrimination? Did the GOP cushion this by saying anything in defense of gay people or families? Did they signal that they could support, say, civil unions? Did they say this gag on the courts was sufficient and the FMA was now redundant? Nah - they promised to amend the Constitution as well, if they can. The only faintly civil impulse is the president's declaration that the debate should be conducted with respect. I will grant the president the benefit of the doubt on this if and when he ever says the words "gay and lesbian citizens." It is the first mark of respect to call people by their name. But he won't. We are unmentionable to him - because if he ever named us, he would humanize us, and if he humanized us, it would become clear how callous and divisive his policies are. I am amused by the fuss made by Bush's refusal to visit the NAACP, and go to the Urban League instead. Isn't it telling that no one even asks whether the president has met with any group representing millions of his fellow gay Americans? Think about that for a minute. It will tell you a lot about this president's ability to be a uniter of this country, rather than a desperately self-interested divider. Some of us in the gay world have gone out on a very long limb to defend this president on the war, and even endorsed him when he promised to be inclusive. He has rewarded us with exclusion, contempt and acquiescence in our demonization. What are we supposed to do in return? Vote for him?


Andy, Andy, Andy….  You supported Bush and his war and his tax-breaks for the rich and his screw-the-environment policies for so very long.  You’ve been used.

But it doesn’t matter.  You’re gay.

Welcome to Germany, 1938 … and you asked for it.


Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
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