[Congressional Record Volume 150, Number 103 (Thursday, July 22, 2004)]
[House]
[Pages H6580-H6613]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    MARRIAGE PROTECTION ACT OF 2004

  Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 734, I 
call up the bill (H.R. 3313) to amend title 28, United States Code, to 
limit Federal court jurisdiction over questions under the Defense of 
Marriage Act, and ask for its immediate consideration.
  The Clerk read the title of the bill.
  The SPEAKER pro tempore. Pursuant to House Resolution 734, the bill 
is considered read for amendment.
  The text of H.R. 3313 is as follows:

                               H.R. 3313

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Marriage Protection Act of 
     2003''.

     SEC. 2. LIMITATION ON JURISDICTION.

       (a) In General.--Chapter 99 of title 28, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 1632. Limitation on jurisdiction

       ``No court created by Act of Congress shall have any 
     jurisdiction, and the Supreme Court shall have no appellate 
     jurisdiction, to hear or determine any question pertaining to 
     the interpretation of section 1738c of this title or of this 
     section. Neither the Supreme Court nor any court created by 
     Act of Congress shall have any appellate jurisdiction to hear 
     or determine any question pertaining to the interpretation of 
     section 7 of title 1.''.
       (b) Amendment to Table of Sections.--The table of sections 
     at the beginning of chapter 99 of title 28, United States 
     Code, is amended by adding at the end the following new item:

``1632. Limitation on jurisdiction.''.

  The SPEAKER pro tempore. The amendment in the nature of a substitute 
printed in the bill is adopted.
  The text of the amendment in the nature of a substitute is as 
follows:

                               H.R. 3313

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Marriage Protection Act of 
     2004''.

     SEC. 2. LIMITATION ON JURISDICTION.

       (a) In General.--Chapter 99 of title 28, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 1632. Limitation on jurisdiction

       ``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, section 1738C or this section.''.
       (b) Amendments to the Table of Sections.--The table of 
     sections at the beginning of chapter 99 of title 28, United 
     States Code, is amended by adding at the end the following 
     new item:

``1632. Limitation on jurisdiction.''.

  The SPEAKER pro tempore. The gentleman from Wisconsin (Mr. 
Sensenbrenner) and the gentleman from Michigan (Mr. Conyers) each will 
control 45 minutes.
  The Chair recognizes the gentleman from Wisconsin (Mr. 
Sensenbrenner).

                              {time}  1300

  Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that the time 
for debate on H.R. 3313 be extended by 20 minutes, said time to be 
equally controlled by myself and the ranking member, the gentleman from 
Michigan (Mr. Conyers).
  The SPEAKER pro tempore (Mr. Shimkus). Is there objection to the 
request of the gentleman from Wisconsin?
  There was no objection.


                             General Leave

  Mr. SENSENBRENNER. Mr. Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and include extraneous material on the bill, H.R. 3313.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Wisconsin?
  There was no objection.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman 
from Texas (Mr. DeLay), the distinguished majority leader.
  Mr. DeLAY. Mr. Speaker, I asked the gentleman from Wisconsin (Mr. 
Sensenbrenner) for the privilege of opening this debate so as to lay 
before the

[[Page H6581]]

House not only the arguments in favor of the Marriage Protection Act, 
but also, and perhaps more importantly, to appeal to Members on all 
sides of this issue to conduct today's debate with the compassion and 
civility that it deserves.
  Mr. Speaker, I repeat my appeal to Members on all sides of this 
issue. I would hope that Members would conduct today's debate with the 
compassion and civility that it deserves.
  I really feel that, I fear that the debate about homosexual marriage, 
which has recently been thrust upon the entire Nation by the Supreme 
Judicial Court of Massachusetts, has begun to deviate from a productive 
conversation about public policy. Too often proponents and opponents 
seem more interested in talking to themselves than to each other, and 
if we truly seek a national consensus on the future of marriage, little 
can be gained by an afternoon spent hectoring each other.
  So those who oppose homosexual marriage need not be lectured about 
compassion any more than those who support it need to be lectured about 
morality. You think this bill is cruel and we think same sex marriage 
is a contradiction in terms. Saying so at the top of our lungs for the 
next few hours will do little good for anyone, least of all the 
millions of American homosexuals who deserve respect in this debate as 
American citizens and as human beings.
  Mr. Speaker, we are elected to judge policies, not people, and the 
policy before us today, the Marriage Protection Act, would reaffirm the 
current national consensus on homosexual marriage by leaving to the 
States and to the American people the right to define marriage in this 
country. This is the position that many Democrats say that they 
support, all 50 States deciding for themselves how to define marriage 
rather than a one-size-fits-all definition being imposed on them from 
above, and this bill is their opportunity to publicly adhere to that 
argument.
  If you support the States and respect the will of the American 
people, you must support this bill. The overwhelming bipartisan passage 
of the Defense of Marriage Act in 1996, signed into law by President 
Bill Clinton, provides uncontradicted testimony to the consensus 
opinion of the American people, an opinion shared by every civilized 
society in history. That consensus is simply that marriage is the union 
between one man and one woman.
  The consensus of the American people is simply that marriage is the 
union between one man and one woman. It is not a contract of mutual 
affection between consenting adults. It is, instead, the architecture 
of family, the basic unit of civilization, and the natural means by 
which the human species creates, protects and instills its values in 
its children.
  Traditional marriage is the most stable, enduring and efficient means 
of raising children, laying down the roots of community life and 
establishing the necessary and sustainable predicates of nationhood. 
This is the evolution of civilization.
  Individual men and women, with the innate qualities of their gender, 
come together in shared sacrifice to raise children. They each make 
their own unique contributions to the raising of boys and girls as male 
and female models for their male and female children and create the 
ideal family unit of mother, father and children, an ideal established 
by nature, sustained by human experience and supported by decades of 
social science.
  It is not a collection of individuals but of families that come 
together to form a community of shared values and common purpose, and 
communities in turn come together and bind each other by those shared 
values and common purpose to establish a common nation. If any link, if 
any link in that chain breaks, like, for instance, the erosion of the 
traditional family that has occurred in this country over the last 40 
years, the institution of marriage suffers, but so does the Nation.
  Children need their community and their Nation to help stabilize 
their social environment so that they can have the same chances in life 
we and every generation of Americans have had before them. That is why 
there has always been and always will be a compelling government 
interest to protect the institution of marriage from corrosion within 
or artificial social engineering without.
  If it is true what the Massachusetts Supreme Court says, and I do not 
believe that it is, that ``marriage is an evolving paradigm,'' then 
should not that evolution be an organic, natural evolution and left to 
the collective and evolving wisdom of the American people?
  And if, on the other hand, no such institutional evolution exists, 
does not the arrogance of judges who would impose on our society their 
own contrary and misguided prejudices fundamentally undermine American 
democracy?
  In both cases the answer is yes, and in both cases the Marriage 
Protection Act will ensure that we take the proper course.
  We are a nation of laws, not commandments, and neither the 
conservative politician nor the liberal judge by himself has the right 
to define marriage for a nation of 270 million people. That 
responsibility, that responsibility lies with the people we all serve, 
whether it is in Sugar Land or San Francisco and everywhere in between.
  So I urge my colleagues, let us have a debate. Let us have a civil 
debate. But in the end I hope my colleagues understand that that 
responsibility lies in the body of the House of Representatives and you 
will vote yes on the bill before us.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I begin by thanking the leader and the chairman of the 
Committee on the Judiciary, the gentleman from Wisconsin (Mr. 
Sensenbrenner), for allowing us to add 10 minutes on each side to this 
debate.
  Now, let us begin with the nature of H.R. 3313. This is not about 
marriage. This is about whether the third branch of government, the 
judiciary, since Marbury v. Madison will continue to be the arbiter of 
what is constitutional in the American system.
  So I begin by pointing out that to deny any branch, any issue the 
right to full judicial review would bring about more chaos than even 
the proponent of this change, which is patently unconstitutional, would 
want. The legislation is the first of its kind that has ever been 
brought to the floor of the House of Representatives.
  Never have we ever tried to do something as breathtaking as taking 
away the right of a Federal appeal when it is clearly permissive not 
even to go to the Supreme Court. We had an amendment that would have 
allowed the Supreme Court at least to take precedent. It was voted down 
by the conservatives in the Committee on the Judiciary. This would be 
the only instance in the history of the Congress that we have totally 
precluded the Federal courts from considering the constitutionality of 
Federal legislation.
  The other body only last week decided this question the same way that 
I pray we will today. They turned it back. It was considered too 
unconstitutional and too unprecedented. Now, make no mistake about it, 
were the bill to be enacted, the chaos that would ensue from 50 States 
plus the District of Columbia issuing conflicting opinions on the 
marriage law would be irrational.
  Why, I ask my colleagues, and I will yield, why would anyone want to 
create out of this rational body a law that would prevent the Federal 
courts from deciding cases rather than allowing anywhere up to 50, 51 
different decisions? I yield to anyone in this body.
  So I want to urge to you that the reason is that we are actually 
stripping the Federal courts from jurisdiction that has historically 
been theirs. We have these branches in the judiciary. Now, what would 
have happened had conservatives decided during the civil rights battles 
of the sixties to have decided that we would just take the decisions 
away from the courts, or Brown v. The Board or any of the tests against 
the Civil Rights Act, the Voter Rights Act, would have had nowhere to 
go had someone come across this incredibly weird decision.
  So I rise in strong opposition to this. I urge the Members, as the 
leader who preceded me said, may rationally analyze where stripping the 
Federal courts from any one single issue, where that would lead this 
great Constitution and democracy of over 209 years.
  I rise in strong opposition to this unconstitutional, discriminatory, 
divisive, and unprecedented bill. The only reason we are debating today 
is that the President is in danger of losing his job and wants to 
detract attention from

[[Page H6582]]

his failure in Iraq and to bolster support amongst right-wing 
conservatives.
  In the past few weeks, I am sorry to say the death toll of U.S.-led 
forces in Iraq topped 1,000. The bipartisan 9-11 Commission found, 
contrary to the President's implications, that there was no 
``collaborative relationship'' between Iraq and Al Qaeda. And we all 
know that no weapons of mass destruction have been found in Iraq.
  What did the President do about it? He followed the advice of 
conservative organizers and ``changed the subject'' so he could have a 
chance of winning in November.
  That is why we are here. The President and the Republican leadership 
know that a constitutional amendment could not pass; in fact, it failed 
the Senate last week. Instead, they are moving this divisive and 
unconstitutional bill, which proposes to strip all federal courts and 
the Supreme Court from reviewing not just one but two acts of Congress.
  I cannot believe that proponents of this bill understand its 
implications. Imagine if, in the early 1950's, a conservative Congress 
had succeeded in stripping the federal courts of jurisdiction to hear 
segregation cases. The Supreme Court would never have issued its 
historic Brown v. Board of Education decision declaring that separate 
was not permitted in education.
  Alternatively, consider the implications if a more liberal Congress 
opted to prevent federal courts from hearing any Second Amendment 
cases. How would my conservative colleagues like it if the California 
or the Massachusetts Supreme Court was the final arbiter of the right 
to bear arms in their states? Would they think it fair that a single 
class of citizens--gun owners--were excluded from appeals to our 
federal judicial system?

  Yet that is what H.R. 3313 would do--deny any judicial review, even 
by the Supreme Court--of any case brought challenging the 
constitutionality of the Defense of Marriage Act, which clarifies that 
states need not give full faith and credit to same sex marriages 
entered into in other states. This legislation would be the first and 
only instance in which Congress had totally precluded the federal 
courts from considering the constitutionality of federal legislation.
  This runs totally contrary to our bedrock principles. Article III of 
the Constitution says ``the judicial Power of the United States, shall 
be vested in one supreme Court.'' And in the more than 200 years that 
have passed since Marbury v. Madison, judicial review has served as the 
very touchstone of our constitutional system and our democracy.
  It is no wonder that, when court stripping legislation was proposed 
in the 1970's concerning school prayer, abortion, and busing, 
conservatives found the proposals to be so repugnant. Then-Yale Law 
School Professor Robert Bork wrote of the bills, ``you'd have 50 
different constitutions running around out there, and I'm not sure even 
conservatives would like the results.'' Senator Barry Goldwater stated 
that the ``frontal assault on the independence of the Federal courts is 
a dangerous blow to the foundations of a free society'' and warned 
``there is no clear or coherent standard to define why we shall control 
the Court in one area but not another.''
  Today, the stakes are no less significant. As emotionally charged and 
politicized as the issue of same sex marriage has become, we should not 
use that controversy to permanently damage the courts, the 
Constitution, and the Congress. At a time when it is more important 
than ever that our Nation stand out as a beacon of freedom, we must not 
countenance a bill that undermines the very protector of those 
freedoms--our independent federal judiciary.
  The bill is even more misguided considering that it was a state 
court, not a federal court, that issued an opinion that permitted same 
sex marriage. Further, no federal court has even opined on the 
constitutionality of DOMA.
  Make no mistake about it. If this bill is enacted, chaos will ensue 
when the fifty states and the District of Columbia issue conflicting 
opinions on DOMA. Then my colleagues on the other side will be 
clamoring for review by a Supreme Court that has seven Republican 
appointees and two Democratic appointees.
  I urge my colleagues to vote ``no'' on this legislation.

                                   Congressional Research Service.

                               Memorandum

     To: House Committee on the Judiciary, Attention: Perry 
         Apelbaum.
     From: Johnny H. Killian, Senior Specialist, American 
         Constitutional Law, American Law Division.
     Subject: Precedent for Congressional Bill.

       This memorandum is in response to your query, respecting 
     H.R. 3313, now pending before the House of Representatives, 
     as to whether there is any precedent for enacted legislation 
     that would deny judicial review in any federal court of the 
     constitutionary of a law that Congress has enacted, whether a 
     law containing the jurisdictional provision or an earlier, 
     separate law. We are not aware of any precedent for a law 
     that would deny the inferior federal courts original 
     jurisdiction or the Supreme Court of appellate jurisdiction 
     to review the constitutionality of a law of Congress.

  Mr. Speaker, I reserve the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, H.R. 3313, the Marriage Protection Act, simply prevents 
one or more Federal judges from striking down the provision of the 
Defense of Marriage Act, known as DOMA, that protects States from 
having to recognize same sex marriage licenses granted in other States.
  This bill will prevent unelected lifetime appointed Federal judges 
from taking away from the States their right codified in DOMA to reject 
same sex marriage licenses issued elsewhere if States so choose.
  DOMA passed the Congress overwhelmingly in the House by a vote of 342 
to 67 and in the Senate by a vote of 85 to 14, and it was signed into 
law by President Clinton.

                              {time}  1315

  This afternoon we will hear from opponents of this bill that this is 
an unprecedented move to restrict the jurisdiction of the Federal 
courts. This is not the case.
  Beginning with the first Congress, when the Judiciary Act of 1789 was 
passed, the jurisdiction of the Federal courts was limited; and since 
that time, Congress has passed enactments either expanding or 
restricting the jurisdiction of the Federal courts, whether it be in 
the area of diversity jurisdiction or elsewhere, including the 
interpretation of Federal laws.
  Just less than 2 years ago, as a part of a supplemental 
appropriations bill, the Congress enacted a provision inserted by 
Senator Daschle of South Dakota preventing Federal court review of 
determinations made on the clearing of brush on Indian reservations in 
South Dakota. That was not called an assault on the Constitution by 
anyone. It was merely a determination by the Congress that these types 
of questions should not be reviewed judicially, and that is very 
clearly authorized by article III, section 2 of the Constitution.
  Today, we are talking about an issue of whether the Federal courts 
can interpret the Defense of Marriage Act to take away the right of the 
State to determine its own marriage laws.
  We have heard earlier in this debate that the supreme judicial court 
of Massachusetts in an interpretation of States rights made the 
determination that it was unconstitutional to deny marriage licenses, 
and in that one State only, to persons of the same gender who applied 
for such a license. What this bill will do is to prevent a Federal 
court from exporting the decision of a divided court in a single State 
to the other States.
  I do not believe that when James Madison wrote the Constitution his 
idea of federalism was to allow a divided court in a single State to 
set national policy, and I sincerely doubt the Constitution would have 
been ratified had that been the notion that pervaded Philadelphia in 
1787 and in the State legislatures elsewhere.
  What we are doing here is restoring the Federal system. We are 
restoring a Federal system in an area that has always been conceded to 
be the province of the State.
  Now, a lot of people will also argue against this bill saying that 
the danger is not there. I am here to say that the danger is real.
  Just 2 days ago, a lesbian couple married in Massachusetts filed the 
first lawsuit in a Florida Federal court to set Federal precedent and 
to strike down DOMA's protection that allows States not to recognize 
same-sex marriage licenses issued in Massachusetts. The attorney for 
the plaintiffs explicitly stated he filed the case because he wants a 
Federal court to force every State to recognize same-sex marriage 
licenses issued in Massachusetts, whether the people of that State 
agree or not.
  Now, the laws of Florida are different than the laws of 
Massachusetts. Florida should be allowed to make its own laws and to 
enforce its own laws and not to have residents who disagree with those 
laws run to Massachusetts and come back and force a Federal judge to 
recognize that license in Massachusetts.

[[Page H6583]]

  The threat that is posed to traditional marriage by a handful of 
Federal judges whose decisions can have an impact across State 
boundaries has renewed concern about abuse of power from the Federal 
judiciary. This concern has roots as old and venerable as our Nation's 
history and is nothing new in the year 2004.
  Thomas Jefferson wrote of Federal judges: ``Their power is the more 
dangerous as they are in office for life and not responsible to the 
elective control.''
  Abraham Lincoln said in his first inaugural address in 1861: ``The 
candid citizen must confess 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.''
  This statement by Abraham Lincoln was in the wake of the Dred Scott 
decision, a decision of the Supreme Court which was the single most 
important spark that began a civil war which to this day was the most 
bloody conflict in our history.
  A remedy to abuses by Federal judges has long been understood to lie, 
among other places, in Congress's ability to limit Federal court 
jurisdiction. H.R. 3313 would prevent a few Federal judges from 
rewriting State marriage recognition laws in ways that do not reflect 
the will of the people. Nothing in this bill denies anyone their day in 
court. The bill simply provides that in cases involving DOMA's 
protection of States rights, those cases are to be brought in State 
court.
  The door of the courthouse is not slammed shut. The people who were 
married in Massachusetts and want to get recognition of their marriage 
elsewhere, it is the State courthouse that they go to, not the Federal 
courthouse.
  Any Member who wishes to protect the Defense of Marriage Act's 
protections for States from invalidation by Federal judges should 
support this bill. The vast majority of Members of the House represent 
States that have passed laws that specifically rely on the right of the 
States codified in DOMA to resist same-sex marriage licenses issued out 
of State.
  The Constitution clearly provides that the lower Federal courts are 
entirely creatures of the Congress, as is the appellate jurisdiction of 
the Supreme Court, excluding only the Supreme Court's very limited 
original jurisdiction over cases involving ambassadors and cases in 
which States have legal claims against each other.
  In The Federalist Papers, Alexander Hamilton made clear the broad 
nature of Congress's authority to amend Federal court decisions to 
remedy perceived abuse. He wrote, describing the Constitution, that 
``it ought to be recollected that the national legislature will have 
ample authority to make such exceptions, and to prescribe such 
regulations as will be calculated to obviate or remove the 
inconveniences'' which are posed by decisions of the Federal judiciary.
  That understanding prevails today. As a leading treatise on Federal 
court jurisdiction has pointed out: ``Beginning with the first 
Judiciary Act in 1789, Congress has never vested the Federal courts 
with the entire `judicial power' that would be permitted by article 
III'' of the Constitution. Even the famously liberal Justice William 
Brennan wrote a Supreme Court opinion that said: ``Virtually all 
matters that might be heard in article III Federal courts could also be 
left by Congress to State courts.''
  The United States Constitution applies to the State courts. That was 
made clear in the 14th amendment.
  Limiting Federal court jurisdiction to avoid abuses is not a partisan 
issue. Senate Minority Leader Daschle, as I have previously indicated, 
supported legislation enacted during the last Congress that denies the 
Federal court jurisdiction over the procedures governing timber 
projects in order to expedite forest clearing. If limiting the 
jurisdiction of the Federal court is good enough to protect trees, it 
sure ought to be good enough to protect a State's marriage policy.
  Far from violating the separation of powers, legislation that leaves 
State courts with jurisdiction to decide certain classes of cases would 
be an exercise of one of the very checks and balances provided for in 
the Constitution. No branch of the Federal Government can be entrusted 
with absolute power and certainly not a handful of tenured Federal 
judges appointed for life. The Constitution allows the exercise of 
judicial power, but it does not grant the Federal courts the unchecked 
power to define the limits of its own power.
  Integral to the American constitutional system is each branch of 
government's responsibility to use its powers to prevent overreaching 
by the other branches. H.R. 3313 does just that, and I urge my 
colleagues to support it.
  Mr. Speaker, I reserve the balance of my time.
  Mr. NADLER. Mr. Speaker, I yield 2\1/2\ minutes to the distinguished 
gentleman from Maryland (Mr. Hoyer), Democratic whip.
  Mr. HOYER. Mr. Speaker, I thank the gentleman for yielding me time.
  I supported the Defense of Marriage Act. I rise now in the defense of 
the Constitution of the United States. I rise now in defense of the 
separation of powers. I rise now in defense of a Nation of laws, not of 
men and women.
  Mr. Speaker, I urge all of my colleagues to seriously consider the 
ramifications of the legislation under consideration.
  If this bill becomes law, it will represent the first time in our 
history that Congress has enacted legislation that completely bars any 
Federal court, including the United States Supreme Court, from 
considering the constitutionality of Federal legislation. Thus, it 
contradicts the Supreme Court's historic ruling more than 200 years ago 
in Marbury v. Madison, which enunciated the principle of Federal 
judicial review of Federal laws and established the separation of 
powers doctrine.
  How dramatically different has that made America than every other 
nation in the world, in fact? A Nation of laws.
  In Marbury, Chief Justice John Marshall wrote: ``It is emphatically 
the province and duty of the judicial department to say what the law 
is.''
  This legislation, however, would undue the deference and respect that 
Congress has given to the principle of judicial review. It would 
intrude upon the principle of separation of powers; and as a result, I 
believe it is unconstitutional.
  This legislation also would undermine the independent Federal 
judiciary. Even the majority's witness, hear me colleagues, the witness 
called by the majority, Professor Redish, said that if Congress strips 
the courts of jurisdiction it would, the majority's own witness, ``risk 
undermining public faith in both Congress and the Federal courts.'' 
That was your witness, not ours.
  And there is little doubt that this bill would set a dangerous 
precedent.
  The author of the Defense of Marriage Act, one of the most 
conservative Members that has served in this Congress, Bob Barr, said 
this: ``My main concern with H.R. 3313 is that it will lay the path for 
the sponsors of unconstitutional legislation to simply add the language 
from H.R. 3313 to their bills.'' Bob Barr, the sponsor of the Defense 
of Marriage Act, said that.
  If this end-run of judicial review becomes law, what is next? No 
judicial review of laws restricting freedom of speech or religion or 
laws affecting the right to vote?
  I was elected to the Maryland State Senate in 1966. One of the first 
bills I voted on in January of 1967 was to repeal the miscegenation 
statutes that then were on the Maryland books. America has nevertheless 
stood strong.
  Let us reject this undermining of what America stands for, a Nation 
of laws, not of men and women.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 5 minutes to the gentleman 
from Ohio (Mr. Chabot), the distinguished chairman of the Subcommittee 
on the Constitution.
  Mr. CHABOT. Mr. Speaker, I want to thank the gentleman from Wisconsin 
for his leadership on this issue. I also want to thank the gentleman 
from Indiana (Mr. Hostettler) for proposing this legislation and his 
leadership as well.

                              {time}  1330

  Mr. Speaker, I rise in strong support of H.R. 3313, the Marriage 
Protection Act. This legislation prevents unelected lifetime appointed 
Federal

[[Page H6584]]

judges from striking down the protections Congress afforded States 
through the Defense of Marriage Act.
  The fact of the matter remains that marriage between a man and a 
woman has been and continues to be the cornerstone of our society. If 
we are going to change that, if we are going to make two men able to be 
married or two women able to be married in this country, and I do not 
think we should, but if we were, it ought to be done through the will 
of the people, and the will of the people is expressed through their 
elected representatives, either at the State legislature, whatever 
State they are located within, or the Congress of the United States, 
should we determine to take that on nationally.
  Rather than having the elected representatives do this, it has been 
done piecemeal by a rogue mayor, for example, in San Francisco, or a 
court by a 4 to 3 decision in Massachusetts. So clearly what has 
happened here, and this is an issue that some on the other side of the 
aisle might think that Members on this side of the aisle want to be 
debating today, well, this is an issue which has been thrust upon us by 
rogue mayors and rogue courts, not something we chose but something we 
have to do.
  The Subcommittee on the Constitution that I chair held four hearings 
focusing on the status of marriage in the United States. One of the 
hearings focused specifically on the issue we are considering today. 
That hearing clearly demonstrated that we could, if we wished, 
constitutionally strengthen the Defense of Marriage Act and limit the 
ability of activist Federal judges to force one State's controversial 
marriage laws on any other State by passing this legislation. We can 
clearly constitutionally do this.
  Now as my colleagues know, in 1996 the House overwhelmingly passed 
the Defense of Marriage Act by a 342-67 vote. The Senate voiced similar 
support passing DOMA by a vote of 85-14. It was later signed into law 
by President Clinton. In passing DOMA, Congress recognized that 
controversial views on marriage adopted in one State should not be 
forced on other States. Understanding that marriage as defined by a 
State would have an impact across State lines, Congress exercised its 
authority under Article IV, Section 1 of the Constitution, the full 
faith and credit clause, to protect States right.
  Under this provision, ``full faith and credit should be given in each 
State to the public acts, records, and judicial proceedings of every 
other State; and the Congress may by general laws prescribe the manner 
in which such acts, records, and proceedings shall be proved, and the 
effect thereof.''
  Today, 44 States have enacted laws defining marriage as between a man 
and woman. That is 88 percent of the States, and 86 percent of the 
population throughout the country. So far, 38 States have specifically 
rejected the recognition of same sex marriage licenses granted out of 
State. Unfortunately, the will of the States could be jeopardized by 
Federal judges. That is the point of this legislation.
  H.R. 3313 will protect the provision of DOMA that keeps final 
authority of the will of the States with the States, not with Federal 
judges. Let me make something very clear. If Members voted for the 
Defense of Marriage Act or purport to support it now, Members must 
logically vote for the Marriage Protection Act, this law. Voting 
against this legislation will undermine DOMA and potentially force 
same-sex marriages on all 50 States.
  The Constitution allows Congress to protect DOMA through judicial 
limitations set forth in H.R. 3313. Together, Article III, Sections 1 
and 2 of the Constitution, provide that the Federal courts derive 
authority solely from Congress and the Supreme Court's appellate 
jurisdiction is subject to such exceptions and such regulations as the 
Congress shall make. Moreover, this authority was made clear as far 
back as the first Judiciary Act of 1789, which according to leading 
scholars ``is widely viewed as an indicator of the original 
understanding of Article III.''
  Mr. Speaker, I strongly encourage my colleagues to support this 
legislation. It is very important.
  Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, more than anything else, today's debate is about the 
politics of a national election. Perhaps our sons and daughters have 
been sent to Iraq based on intelligence we now know was not correct, 
perhaps millions of Americans are out of work, and many more do not 
have access to a doctor. Perhaps our seniors cannot afford life-
protecting medications, but none of that matters, at least we can today 
take the time out to beat up on an unpopular minority.
  Mr. Speaker, that may be good politics, but it demonstrates a 
dangerous contempt for our system of government. This debate is not 
really about gay marriage, no matter how long they may talk about it. 
The courts will or will not declare the Defense of Marriage Act 
unconstitutional. We do not know that yet. If they declare the Defense 
of Marriage Act unconstitutional, for those that disagree with them, 
the remedy is the normal remedy, a constitutional amendment, which I 
gather we will be debating on this floor in a couple of weeks before we 
know what the courts do.
  But this debate is about whether Congress can adopt unconstitutional 
legislation on any subject and protect that legislation from 
constitutional challenge by stripping the courts of their jurisdiction 
to consider any such challenge. We have never done that before in our 
history, and we should not do that now.
  No less a conservative icon than Barry Goldwater opposed court 
stripping bills in previous decades on the subjects of school prayer, 
school busing and abortion, which were the big issues in those days. He 
warned his colleagues that, ``The frontal assault on the independence 
of the Federal courts is a dangerous blow to the foundations of a free 
society.''
  Our former colleague, Bob Barr, the author of the Defense of Marriage 
Act which this bill purports to protect, had this to say in a letter to 
the Members of Congress about this bill. ``H.R. 3313 will needlessly 
set a dangerous precedent for future Congresses that might want to 
protect unconstitutional legislation from judicial review. During my 
time in Congress, I saw many bills introduced that would violate the 
takings clause, the second amendment, the 10th amendment, and many 
other constitutional protections. The fundamental protections afforded 
by the Constitution would be rendered meaningless if others follow the 
path set by H.R. 3313.'' That is from Bob Barr.
  The distinguished majority leader of the House, the gentleman from 
Texas (Mr. DeLay), has already said that if this bill passes he will 
introduce court-stripping legislation on other subjects. In fact, the 
likelihood is that language saying the court shall have no jurisdiction 
to judge the constitutionality of this act will become boilerplate. 
Just as every rule that we consider in this House has boilerplate 
language saying that all points of order against this bill are waived, 
which means the rules of the House do not apply, it will become 
boilerplate on every bill of doubtful constitutionality. That would 
render the Bill of Rights meaningless.
  The 1936 Stalinist constitution of the Soviet Union read wonderfully 
on paper. It had a long list of Bill of Rights, freedom of religion, 
freedom of speech, and freedom of assembly. It was not worth the paper 
it was written on because there was no means of enforcing those rights. 
We depend on the courts to enforce our rights against majorities 
represented in Congress or State legislatures, momentary majorities 
perhaps.
  Without the means of the courts enforcing the Bill of Rights, the 
Bill of Rights is a nullity. Our Constitution would become like the 
Soviet constitution, meaningless. We must have a Federal forum to 
protect liberty, otherwise that liberty will not exist.
  The due process clause of the fifth amendment, passed after the 
Judiciary Court Act of 1789, says that no person may be deprived of 
life, liberty or property without due process of law. Due process of 
law means there has to be a judicial forum to assert the right and have 
the judges decide.
  We are told the State courts will be the forum. The State courts will 
decide whether a law, a Federal law or a State law, violates the United 
States Constitution. That means we will have 50 different 
constitutions, 50 different laws. We say in the Pledge of Allegiance 
the United States is one Nation, indivisible; not if this bill passes. 
If this bill and other bills like it pass, we

[[Page H6585]]

will balkanize the United States. The Constitution will mean one thing 
in New Jersey, another thing in New York and a third thing in 
Pennsylvania.
  Mr. Speaker, it is our very system of government and the 
constitutional system of checks and balances which is under attack with 
this bill. If the Congress by statute can prevent the Federal courts 
from applying the Constitution on any subject matter, then the 
protections of an independent judiciary, the protections of the Bill of 
Rights, the protections of the United States Constitution, become no 
more than a puff of smoke. It will, of course, be unpopular minorities, 
whether religious minorities, political minorities, ethnic minorities, 
racial minorities, lesbians, gays, whoever is unpopular at the moment, 
who will lose their rights.
  There have been many Supreme Court decisions I have found loathsome 
and wrong, such as Bush v. Gore, and some of the cases invalidating or 
limiting our civil rights law, but while that makes me question the 
wisdom of some of the justices, even occasionally the motives, it does 
not make we want to alter the fundamental structure of our government 
that has protected our liberties for the last two centuries.
  The evisceration of our Constitution and Bill of Rights, the natural 
result of this bill, threatens all of us. It is far, far more important 
than the question of gay marriage, which is not really involved here 
because that has not been decided by the courts. We are playing with 
fire with this bill, and that fire could destroy the Nation we love.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself 1 minute.
  Mr. Speaker, the predictions of attacks by opponents of this bill, 
including the gentleman from New York (Mr. Nadler), are slaps in the 
face of the 50 States.
  The Supreme Court itself agrees in this case. In a decision this 
year, the Supreme Court reaffirmed that ``the whole subject of domestic 
relations of husband and wife, parent and child belongs to the laws of 
the States and not to the United States.'' That is Elk Grove Unified 
School District v. Newdow.
  The Supreme Court also has stated, ``domestic relations are 
preeminently matters of State law.'' That is Mansell v. Mansell, 1989. 
And that ``family relations are a traditional area of State concern,'' 
Moore v. Sims, 1979.
  So by reserving marriage law decisions to States, as this bill does, 
we are doing nothing more than what the Supreme Court itself has said 
is proper.
  Mr. Speaker, I yield 2 minutes to the gentleman from Indiana (Mr. 
Hostettler), who is the author of the bill.
  (Mr. HOSTETTLER asked and was given permission to revise and extend 
his remarks.)
  Mr. HOSTETTLER. Mr. Speaker, I thank the gentleman from Wisconsin 
(Mr. Sensenbrenner), the chairman of the full committee, for yielding 
me this time.
  In my discussion during the consideration of the rule, I informed the 
body of the constitutional basis for this law. I have several of the 
provisions beside me here, and for Members who are actually interested 
in what the Constitution says, that is available in the record as well 
as in several copies that are available to every Member's office.
  However, I would like to address some of the issues talked about 
during this debate, and one of the issues that is a discussion of where 
we are with regard to other countries, it was suggested earlier, and we 
heard it in the last person's speech, that somehow we are doing as the 
Soviet Union has done in the past by limiting the ability for 
individuals to go before the court.
  Well, the fact is that there was a mechanism in the Soviet Union very 
similar to the mechanism we have in this country, and it was referred 
to as the Politburo, and the Politburo was a very small entity of 
individuals that made policy for the hundreds of millions of individual 
citizens of the Soviet Union. We have that today in this country. We 
refer to it as the United States Supreme Court. As few as five people 
in black robes can look at a particular issue and determine for the 
rest of us, insinuate for the rest of us, that they are speaking for 
the majority when, in fact, they are not.
  It is time with the passage of this legislation to say that we will 
have the people in the several States to determine their marriage laws, 
and we will not allow, for example, what is attempting to be done in 
the State of Florida, and that is a couple that was wed in the State of 
Massachusetts imposing their will on the rest of the country by 
overturning the Defense of Marriage Act.
  This bill uses constitutional provisions to allow the States and to 
allow the citizens of the several States to determine the definition of 
marriage for themselves and to not allow another State and especially 
the Federal judiciary to determine the definition of marriage for them.

                              {time}  1345

  Mr. NADLER. Mr. Speaker, I yield 1\1/2\ minutes to the distinguished 
gentleman from California (Mr. Berman).
  Mr. BERMAN. Mr. Speaker, I thank the gentleman for yielding me this 
time.
  I think I just heard the Supreme Court of the United States 
analogized to the politburo of the Soviet Union, but I am not sure. The 
Hostettler fix was tried before. It has never happened, but it was 
tried before and here is what Attorney General William French Smith 
said in a letter to Strom Thurmond back in 1982:
  ``The integrity of our system of Federal law depends on a single 
court of last resort having a final say on the resolution of Federal 
questions. State courts could reach disparate conclusions on identical 
questions of Federal law, in this case interpreting the Constitution, 
and the Supreme Court would not be able to resolve the inevitable 
conflicts.''
  If you want to do away with the supremacy clause, repeal Marbury v. 
Madison, and rip apart any uniform effort to enforce constitutional 
protections, you should vote for this bill. But one day, some liberal 
runaway court in some State, justices which we cannot impeach and that 
we did not confirm over in the other body, one day that court will come 
down and say that DOMA, the Defense of Marriage Act, is 
unconstitutional because of the full faith and credit clause; and the 
losing parties, the people who want State control on the issue of who 
can marry, will not be able to appeal that to the U.S. Supreme Court 
under this bill.
  What a ridiculous situation.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman 
from Texas (Mr. Smith).
  Mr. SMITH of Texas. Mr. Speaker, I thank the chairman of the 
Committee on the Judiciary, the gentleman from Wisconsin, for yielding 
me this time.
  Mr. Speaker, all Americans are entitled to a fair hearing before 
independent-minded judges whose only allegiance is to the law. However, 
over the last several years we have witnessed some judges wanting to 
determine social policy rather than interpret the Constitution. They 
seem to be legislators, not judges; promoters of a partisan agenda, not 
wise teachers relying on established law.
  Judicial activism has reached a crisis. Judges routinely overrule the 
will of the people, invent new rights, and ignore traditional morality. 
Judges have redefined marriage, deemed the Pledge of Allegiance 
unconstitutional, outlawed longstanding religious practices, and 
imposed their personal views on all Americans.
  Fortunately, there is a solution. The Constitution empowers Congress 
to say that some subjects are off-limits to Federal courts. The 
constitutional authority authorizing Congress to restrain Federal 
courts, in fact, has been used before, and it should be used again.
  The legislation being considered today preserves the right of State 
courts to consider the constitutionality of the Defense of Marriage 
Act, DOMA. It prevents Federal judges from ordering States to accept 
another State's domestic relations policy, an area of the law 
historically under the jurisdiction of the States, not the Federal 
Government.
  While the bill does not dictate any conclusions about DOMA, the vast 
majority of States have enacted laws that support DOMA. We need to 
protect the right of the voters of those States to define marriage as 
they see it.
  When Federal judges step over the line, Congress has a responsibility 
to

[[Page H6586]]

drop a red flag. On behalf of the American people, we should vote for 
this legislation because it rightfully restrains Federal judges who 
threaten our democracy.
  Mr. NADLER. Mr. Speaker, I yield myself 20 seconds.
  Mr. Speaker, reference was made before to the Daschle court-stripping 
bill. There was no such thing. His bill did not court-strip. In fact, 
in the case of Biodiversity Associates v. Cables, his bill was judged 
constitutional. If the courts had been stripped of jurisdiction, they 
could not have done that.
  The CRS says, ``We are not aware of any precedent for law that would 
deny the inferior Federal court's original jurisdiction or the Supreme 
Court of appellate jurisdiction to review the constitutionality of a 
law of Congress.''
  Let us stop with this nonsense that this is not unprecedented.
  Mr. Speaker, I yield 2\1/2\ minutes to the distinguished gentleman 
from Virginia (Mr. Scott).
  Mr. SCOTT of Virginia. Mr. Speaker, I rise in opposition to this 
bill. It is an attack on fundamental rights and unconstitutionally 
exceeds the power of this body to regulate the judicial branch of 
government.
  Within our constitutional framework, although Congress is expected to 
follow the Constitution, it is not for Congress to make the final 
decision as to what is constitutional and what is not. Since Marbury v. 
Madison in 1803, at least until today, there has been a longstanding 
acceptance of the principle that the United States Supreme Court is the 
final arbiter of what is constitutional and what is not. And although 
Congress has some power to regulate the jurisdiction of Federal courts, 
it cannot totally prevent the Supreme Court from ensuring that States 
comply with the Constitution.
  Mr. Speaker, this bill not only violates numerous constitutional 
principles; it is dangerous policy. If this bill were found to be 
constitutional, there would be no prohibition against boilerplate 
language stuck into every bill we consider, stripping judicial review 
from every controversial issue.
  Frankly, I am glad that this kind of legislation did not pass before 
1954 so Congress did not strip the Supreme Court from jurisdiction over 
segregation in public schools, or before the 1960s when unelected, 
lifetime-appointed activist Federal judges required Virginia to 
recognize racially mixed marriages, overruling the will of the people 
of Virginia.
  If this bill ever became law, there would be no Federal law. Some 
States would rule that DOMA is constitutional. Other States would rule 
that DOMA is unconstitutional. States will adopt full faith and credit 
principles in some areas and not in others. A Massachusetts or Vermont 
couple moving to another State may have their relationship recognized 
in some States, but not in others. If this bill passes, each State will 
decide for itself what the Federal law is. Even if it passes, some 
States will recognize same-sex marriages.
  Mr. Speaker, simply because we anticipate that we may not like how 
the Supreme Court will rule on an issue is no reason to prevent the 
court from ruling. Today, some Members of Congress are afraid of how 
courts may rule on issues pertaining to marriage. Tomorrow they may be 
afraid of how the courts may rule on a different issue, such as 
abortion or gun control. If we strip the jurisdiction of the Supreme 
Court over the Defense of Marriage Act, what will we do next?
  Mr. Speaker, this unprecedented and perilous legislation violates 
constitutional principles, establishes dangerous procedure, and 
undermines the credibility of our system of government. For these 
reasons, Mr. Speaker, I urge my colleagues to oppose the bill.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself 30 seconds.
  Mr. Speaker, the gentleman from New York has just referenced the 
Daschle provision in Public Law 107-206 and said it was not, ``court-
stripping.'' I just want to quote what the provision of law says:
  ``Any action authorized by this section shall not be subject to 
judicial review by any court of the United States.''
  That quote from the law speaks for itself.
  Mr. Speaker, I yield 2 minutes to the gentleman from Alabama (Mr. 
Bachus).
  Mr. BACHUS. I thank the gentleman for yielding time.
  Mr. Speaker, I first want to agree with what the gentleman from 
Maryland and the gentleman from Virginia said on the other side. They 
said we are talking about fundamental rights here. They said what we 
are talking about, this decision today, defines us as Americans, that 
this is about who we are as Americans. I want to agree with that. This 
is an important decision, one that defines us as a country.
  Who should make that decision? The gentleman from Maryland said an 
individual, every individual, ought to make that decision about 
marriage. Is that so? A man and a woman? Or two men? Or two women? What 
about a man and two women? What about a man and three women? What about 
a man and his first cousin? What if a man chooses to marry his 
daughter? Is that not an individual decision? Of course not. What if a 
man decides to marry a 12-year-old young lady? We said, no, that is not 
an individual decision. It is a decision of law. That is who makes it. 
The people make it the law.
  The gentleman from Maryland said we are a Nation of laws, not people; 
and that is why it is up to the people to make the decision through 
their elected Members, their elected representatives, not the courts.
  What about letting the courts be the final arbiter of the 
Constitution? Thomas Jefferson said on August 18, 1821 that it was a 
very dangerous doctrine for the Supreme Court to be the final arbiter 
of what the law is. He said in 1820, it would be an act of suicide for 
the Supreme Court or a judge to make the law. An act of suicide. He 
said letting the Supreme Court fix the law would be for the people to 
give up their own ability to rule themselves.
  Mr. Speaker, as I close, I submit for printing in the Record quotes 
from Abraham Lincoln and Thomas Jefferson all saying that it is the 
legislature who makes the law as representatives of the people.

       America's greatest leaders have long been concerned about 
     limiting federal judges' abuse of their authority.
       Deep concern that federal judges might abuse their power 
     has long been noted by America's most gifted observers, 
     including Thomas Jefferson and Abraham Lincoln.
       Thomas Jefferson lamented that ``the germ of dissolution of 
     our federal government is in the constitution of the federal 
     judiciary; . . . working like gravity by night and by day, 
     gaining a little today and a little tomorrow, and advancing 
     its noiseless step like a thief, over the field of 
     jurisdiction, until all shall be usurped . . .'' In 
     Jefferson's view, leaving the protection of individuals' 
     rights to federal judges employed for life was a serious 
     error. Responding to the argument that federal judges are the 
     final interpreters of the Constitution, Jefferson wrote:
       ``You seem . . . to consider the [federal] judges as the 
     ultimate arbiters of all constitutional questions, a very 
     dangerous doctrine indeed and one which would place us under 
     the despotism of an oligarchy. Our judges are as honest as 
     other men and not more so. They have with others the same 
     passions for party, for power, and the privilege of their 
     corps . . . [T]heir power [is] the more dangerous as they are 
     in office for life and not responsible, as the other 
     functionaries are, to the elective control. The constitution 
     has erected no such single tribunal, knowing that, to 
     whatever hands confided, with the corruptions of time and 
     party its members would become despots.''
       Jefferson strongly denounced the notion that the judiciary 
     should always have the final say on constitutional issues:
       ``If [such] opinion be sound, then indeed is our 
     Constitution a complete felo de se [act of suicide]. For 
     intending to establish three departments, coordinate and 
     independent, that they might check and balance one another, 
     it has given according to this opinion, to one of them alone, 
     the right to prescribe rules for the government of the 
     others, and to that one too, which is unelected by, and 
     independent of the nation . . . The constitution, on this 
     hypothesis, is a mere thing of wax in the hands of the 
     judiciary, which they may twist and shape into any form they 
     please.''
       Abraham Lincoln said in his first inaugural address in 
     1861, ``The candid citizen must confess 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.''

  Mr. NADLER. Mr. Speaker, I am pleased to yield 2 minutes to the 
distinguished gentleman from Michigan (Mr. Dingell), the dean of the 
House.
  (Mr. DINGELL asked and was given permission to revise and extend his 
remarks.)
  Mr. DINGELL. Mr. Speaker, this is an outrage. I do not know whether 
you

[[Page H6587]]

are for or against gay marriage, and I do not think it makes a great 
deal of difference. I happen to oppose the idea. But this is an 
extraordinary piece of arrogance on the part of the House of 
Representatives to consider a piece of legislation which would strip 
American citizens of their right to access to court. Can you imagine 
anything more shameful than telling an American citizen you cannot go 
into court to have your concerns addressed, to have cases and 
controversies, many of which will arise under the Constitution, heard 
by the courts of your Nation?
  The right to access to courts to decide questions of policy is as old 
as the Magna Carta, and it is as important to us as anything else in 
the Constitution. Here we calmly say, you cannot have access to the 
courts, the Federal courts, the lower inferior courts, and the Supreme 
Court. Shame. Shame, shame, shame.
  It is a precedent which is going to live to curse us, and we are 
going to live to regret this day's labor because other precedents will 
be following this, wherein we will strip the rights from citizens to go 
to schools, to have questions relative to their equal rights, to have 
questions decided about whether they can properly be detained by courts 
or others and whether or not the citizen can be detained under the 
authority of the Attorney General; rights of citizens under the second 
amendment, the first amendment, all of the important questions of the 
Constitution. Rights under the 14th and the 15th and the 13th 
amendments, those will also be precedents which could follow this.
  The Congress has considered these kinds of questions before. It is to 
be anticipated if this works, we can look to see this kind of abusive 
legislation considered in this body again. And you can be almost 
certain that somebody is sitting there now out there deciding, what new 
rights can we strip of American citizens because we disagree with them.
  I do not think the question is whether or not there should be gay 
marriage. The question before this body today is, are we going to 
protect all of the rights of American citizens, regardless of who they 
might be or how they might be affected?
  Mr. NADLER. Mr. Speaker, I yield 2\1/2\ minutes to the distinguished 
gentlewoman from California (Ms. Lofgren), a member of the committee.
  Ms. LOFGREN. Mr. Speaker, as the prior speaker, the dean of the 
House, has indicated, however one feels on the issue of gay marriage, 
the question before the House today really is quite a different one, 
and it is about the fundamental nature of our democracy. Really, the 
plan before us is a radical, extreme plan to overturn the system of 
government that we as free Americans have enjoyed for over 200 years.
  I have been a Member of this House for 10 years; and I must confess, 
I have never been as disappointed as I am today in the level of legal 
analysis that I have heard here. It is disappointing in the extreme. I 
must also say that you know you are in trouble when you have to go back 
and reread a case from 1803, Marbury v. Madison, because that is what 
we are talking about overturning today, that seminal case that we all 
read in law school, and I read it again this week and it was inspiring 
me again to understand how fortunate we are that we have a written 
Constitution and that we have a system of checks and balances that 
makes sure that the rights in that Constitution cannot be taken away in 
a flimsy or easy way.

                              {time}  1400

  Court Justice Marshall 201 years ago said in his decision, ``It is 
emphatically the province and duty of the judicial department to say 
what the law is. If then the courts are to regard the Constitution, and 
the Constitution is superior to any ordinary act of the legislature, 
the Constitution and not such ordinary act must govern the case to 
which they both apply.''
  It is that principle of constitutional law that is threatened today, 
and we should not fool ourselves into thinking that overturning our 
democracy, our system of checks and balances, can be limited to just 
the hot button issue of today. If this is constitutional, and many 
scholars believe it is not, but if this measure passes and is 
constitutional, we will end up not having the ability to rely on the 
rights guaranteed to us and the generations before us in our 
Constitution. We will in fact see any item that a majority of this 
House and this Congress can muster enshrined as equal to the 
Constitution itself. I think that that is a result that is disastrous 
for the United States of America. It is not something I thought I would 
see as a Member of the House of Representatives, as a member of the 
House Committee on the Judiciary. It is a radical and extremist 
position to take that, and I urge all Members of the House, whatever 
their view is on gay marriage, to not destroy our checks and balance 
system of America that we have been handed that we should treasure and 
preserve and cherish instead of recklessly endanger in this way.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Indiana (Mr. Pence), a member of the Committee on the Judiciary.
  (Mr. PENCE asked and was given permission to revise and extend his 
remarks.)
  Mr. PENCE. Mr. Speaker, I rise in strong support of the Marriage 
Protection Act. I commend the gentleman from Indiana (Mr. Hostettler) 
for his principled leadership on this issue.
  The Marriage Protection Act is a constitutional remedy to a looming 
constitutional crisis. Let me say, despite what we have just heard on 
this blue and gold carpet, nothing in this bill shuts access by 
petitioners to any State court in the land. What brings us here today 
is that activist judges in some States are poised to force a new 
definition of marriage on States like Indiana, and the Marriage 
Protection Act will stop that strategy in its tracks.
  Let me say clearly not on my watch will I stand idly by while the 
courts in Massachusetts redefine marriage in Indiana, and despite what 
my colleagues have said on the other side of the aisle about high 
principle and constitutional ideals and a history lesson, this is about 
marriage. The Bible says ``If the foundations are destroyed, what can 
the righteous do?'' And marriage is such a foundation in our society. 
Marriage was ordained by God, established in the law. It is the glue of 
the American family and the safest harbor to raise children. We must 
preserve and defend this foundation in our society, and we begin by 
defending the right of States like Indiana to define marriage as it has 
ever been defined and will always be defined in the hearts of the 
overwhelming majority of the American people.
  Mr. NADLER. Mr. Speaker, I yield 1 minute to the gentlewoman from 
California (Ms. Pelosi), distinguished minority leader.
  Ms. PELOSI. Mr. Speaker, I have been married for over 40 years, and I 
cannot for the life of me think how this legislation that is on the 
floor today, the so-called Marriage Protection Act, is any protection 
for my marriage. In fact, I think it is not a protection of the rights 
of Americans.
  Every Member of this body has taken a solemn oath to protect and 
defend the Constitution of the United States. That is our oath of 
office. All Members should consider that this bill has far-reaching 
consequences for the separation of powers that has been the hallmark of 
our Constitution, our government, and our rights as American citizens. 
We must today honor our oath of office and oppose this legislation.
  This court-stripping bill is not about reaffirming the Defense of 
Marriage Act or even about gay marriage. The fundamental issue in this 
bill is whether we want to undermine the Supreme Court and the Federal 
judiciary and our system of checks and balances. This bill will impact 
the very foundation of our government. It impedes the uniformity of 
Federal law. It sets a dangerous precedent, and it does grave damage to 
the separation of powers.
  When former Senator Barry Goldwater spoke against a court-stripping 
bill in 1982, he warned his colleagues in the other body that it was a 
frontal assault on the independence of the Federal courts and it is a 
dangerous blow to the foundations of a free society. We must heed that 
warning today.
  This bill would prohibit Federal courts, including the Supreme Court 
of the United States, from hearing cases related to the interpretation 
and the validity under the Constitution of the full faith and credit 
provision of the

[[Page H6588]]

Defense of Marriage Act as well as this court-stripping bill. If 
passed, it would constitute the first time in the over 200 years of our 
country's history that Congress has enacted legislation totally 
eliminating any Federal court from considering the constitutionality of 
Federal legislation. Only State courts would be able to decide 
questions related to this provision of a Federal statute. The irony of 
that is that if one's State passed a law that allowed gay marriages and 
they wanted to challenge it in Federal court, they would only be 
confined in challenging it in a State court in their State. So even 
those who would oppose gay marriage would not have recourse to the 
Federal courts.
  I know that the gay marriage issue is a difficult issue for many 
people, and I respect that. But do not let that bait take them down a 
path that would have them dishonor their oath of office that they took 
to become a Member of this House. Attempting by statute to remove the 
Supreme Court's and the entire Federal judiciary's power to hear a 
class of cases and to even determine the constitutional validity of a 
statute is nothing more than a backdoor attempt to amend the 
Constitution by simple majority.
  It would effectively end the Supreme Court's role as a separate and 
independent branch of government. It would eliminate all means of 
reconciling conflicting State court interpretations of the 
Constitution. Think about that. If passed, it would prevent the Supreme 
Court from being the guardian of our rights.
  It has been a settled principle since Chief Justice John Marshall's 
opinion in Marbury v. Madison, which has been oft quoted here today. 
Marbury v. Madison stated that ``It is emphatically the province and 
the duty of the judicial department to say what the law is.'' 
Subsequent decisions and the Court's role as an equal branch strongly 
suggest that Congress cannot prohibit the Court from determining the 
validity of a law in the first place.
  Indeed, the author of this legislation here today stated that he 
believed that the part of Marbury v. Madison that established judicial 
review was ``wrongly decided.'' Over 200 years of precedent was 
``wrongly decided,'' a view that can only be characterized as radical.
  Just 2 months ago we all celebrated the 50th anniversary of Brown v. 
The Board of Education. If the precedent established by this bill had 
been in force in 1954, there may have been no Brown decision. Imagine 
what would have happened to all of the advances in civil rights without 
that ruling. Imagine how little we would have had to celebrate.
  Numerous legal experts, including from the other party, indicate that 
this bill will likely be found unconstitutional. The court-stripping 
issue is not a new one. Numerous proposals have been made since the 
Civil War but have never been adopted because Congress wisely exercised 
restraint and respected the separation of powers and our constitutional 
framework.
  More recently, in 1981 and 1982, more than 30 court-stripping 
proposals were introduced, primarily by former Senator Jesse Helms, to 
remove such issues as school prayer, reproductive rights, school busing 
from Federal courts' jurisdiction. They all failed, thanks to the 
principled opposition on a bipartisan basis, principally that of, as 
quoted earlier, Senator Barry Goldwater and then Attorney General under 
President Ronald Reagan, Attorney General William French Smith.
  Mr. Speaker, now as then, full jurisdiction of the Supreme Court is 
fundamental under our system of government for a uniform and consistent 
interpretation of the law even when we do not agree with the Court's 
decision. The impact of this legislation goes far beyond the subject 
matter that the proponents claim to be concerned with. Our Founders 
carefully constructed our system of checks and balances, which we 
tamper with at our peril. It is unwise and politically motivated, I 
believe. It is designed simply to distract attention from the real 
issues that we should be dealing with.
  Today, Mr. Speaker, millions of Americans are looking for work. 
Millions more Americans do not have access to quality health care since 
President Bush took office. Our children are not receiving the quality 
of education that they deserve to have, the opportunity that is the 
promise of our country. We are driving ourselves deeply in debt with 
the irresponsible reckless economic policies of the Republicans here, 
giving our children obligations instead of opportunity. We have our men 
and women in uniform in harm's way without the proper equipment, 
training, and intelligence to get the job done, and we want them to be 
second to none, and we will make sure they have what they need, but we 
must take the time to do that.
  And instead, what are we doing? Instead, we are gathering here to 
talk about discrimination, to talk about undermining the Constitution 
of the United States, to talk about dishonoring the oath of office that 
we take to protect and defend the Constitution.
  I agree with those who say ``this bill is as wrong as wrong can be.'' 
In short, this bill is bad law, bad policy. That is why it will not 
have my support.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I can understand the fervor of the gentlewoman from 
California (Ms. Pelosi), distinguished minority leader, in opposition 
to this legislation. She did not support the Defense of Marriage Act 
when it was passed in 1996 and signed by President Clinton. But to 
insinuate that this bill is an attack on the foundations of our 
government is just plain wrong.
  The framers of the Constitution put in Article III, Section 2 
relating to the jurisdiction of the Federal courts, inferior Federal 
courts and the appellate jurisdiction of the Supreme Court to provide a 
check by the legislative branch of government on the judicial branch of 
government, and we have heard quotes from Thomas Jefferson and Abraham 
Lincoln expressing their fears about judicial power being unchecked.
  This bill is a check on judicial power, and the question is whether 
we should have the elected representatives of the people, in this case 
the Congress today and the State legislatures in the future, 
determining Federal marriage policy, or whether we should have a 
Federal judge stating that for a State to take a different position 
than a divided court in Massachusetts is an unconstitutional 
deprivation of rights.
  Now, in the last 10 years or so Congress has restricted the 
jurisdiction of the Federal courts on numerous occasions. Much has been 
mentioned here about the provision that the minority leader in the 
Senate, Senator Daschle, put into Public Law 107-206.

                              {time}  1415

  The press comments about that action, which is public law today, 
included headlines that said: ``Daschle seeks to exempt his State; 
wants logging to prevent fires,'' and ``Plan to curb forest fires wins 
support.''
  Senator Daschle told the Congress and the country there was an 
emergency in his State, that action needed to be taken, and we could 
not have judicial review. The Congress agreed. And we did not hear the 
hue and cry about the Constitution being undermined because of a 
congressional determination that there had to be some logging to 
prevent forest fires in South Dakota, and I think the Congress was 
right in agreeing with Senator Daschle in this instance.
  Now, there are a number of other instances in the past 10 years where 
Congress has precluded Federal judicial review in cases. In 1996, the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 was 
passed. That was Public Law 104-208. It precluded all judicial review 
over specified discretionary decisions of the Immigration and 
Naturalization Service. There you are involving the allegations of 
rights by people who are subject to deportation or other actions by the 
INS. Congress, when it passed that bill, and it was signed by President 
Clinton, said no judicial review. Did we hear at the time that that 
undermined the Constitution? No, we did not. It was a correct decision 
by the Congress to preclude judicial review on this.
  After September 11, 2001, Congress passed the Terrorism Risk 
Insurance Act, Public Law 107-297, precluding judicial review of 
certifications by the Secretary of the Treasury that a terrorist event 
had occurred. Did anybody allege that that undermined the Constitution 
at the time? No way.
  The Small Business Liability Relief and Brownfields Revitalization 
Act,

[[Page H6589]]

also passed in the last Congress as Public Law 107-118, precludes 
judicial review of hazardous waste cleanup programs.
  So this has been going on all the time.
  The Judiciary Act of 1789, one of the first bills passed by the first 
Congress, recognized that the judicial power of the United States was 
not unlimited and limited that judicial power. There have been 
expansions and contractions in the area of diversity jurisdiction of 
the Federal courts. Nobody has alleged that the Constitution is being 
undermined; and, in fact, Federal judges have come to the Congress and 
asked that the jurisdictional amount in diversity cases be raised so 
they did not have as many cases to decide.
  We have heard the Supreme Court say in asbestos that there should be 
some way to prevent 600,000 cases from choking the Federal court 
dockets. I would hope that we would be able to pass some kind of 
asbestos litigation reform.
  The fact of the matter remains that we could go on and on and on. It 
does not violate the Constitution. There are over 200 years of 
precedents in adjusting the jurisdiction of the Federal Court.
  What this bill says is that if a State decides it does not want to 
recognize a same-sex marriage license granted in another State, there 
will not be Federal judicial review to do so. This is a States rights 
bill, and the Supreme Court has repeatedly said that marriage and 
family law is primarily a matter of the States, and this ensures that 
it will be.
  Mr. Speaker, I yield 1 minute to the gentlewoman from Tennessee (Mrs. 
Blackburn).
  Mrs. BLACKBURN. Mr. Speaker, I thank the chairman for yielding me 
time.
  Mr. Speaker, I find it so interesting that some of our colleagues 
today are trying to talk about all sorts of other issues, and some that 
support same-sex marriage are just saying this is an election year ploy 
to get votes.
  I can tell you that for my constituents in Tennessee, they support 
what we are doing here today, and they are not concerned about whether 
or not it is an election year or not. They are concerned about 
protecting marriage, because they know that marriage is an institution 
that is at the very core of our existence, and that is why we are here 
today, to protect marriage.
  I think it is very sad, very sad, that some courts and some activist 
judges have taken it upon themselves to usurp the will of the people. 
Let me remind my colleagues who oppose this that we are acting in the 
will of the people today.
  Already there is a lawsuit that is being brought by same-sex couples 
in Massachusetts to force other States, like my State of Tennessee, to 
accept their Massachusetts marriage license, and it is contrary to the 
Defense of Marriage Act, and it is contrary to the will of the people.
  Mr. NADLER. Mr. Speaker, I yield 2 minutes to the distinguished 
gentleman from Georgia (Mr. Lewis).
  Mr. LEWIS of Georgia. Mr. Speaker, I thank my friend and colleague, 
the gentleman from New York (Mr. Nadler), for yielding.
  Mr. Speaker, for me, this is unreal. It is unbelievable. I thought 
that as a Nation and as a people that we had moved much further down 
the road. To pass this legislation would be a step backward.
  There is a song, and some of you are old enough to know it: ``Mr. Big 
stuff, who do you think you are?'' I would ask, well, Members of 
Congress, who do you think we are?
  We have not been called or chosen by the people to strip the courts 
of their power. We have not been ordained by some force to say, ``Don't 
come in here. Don't apply for justice.''
  Those of us who came through the civil rights movement saw the 
Federal courts as a sympathetic referee in the struggle for justice, 
for fairness and for equality.
  If it had not been for the Federal courts, where would we be? If it 
had not been for the Supreme Court of 1964, there would still be 
legalized segregation in America. If it had not been for the Federal 
courts, we would still see signs saying ``White Men,'' ``Colored Men,'' 
``White Women,'' ``Colored Women,'' ``White Waiting,'' ``Colored 
Waiting.''
  If it had not been for the Federal courts, I would not be standing 
here today and many Members of Congress who are people of color would 
not be standing here either.
  We do not want to go back. We want to go forward. To vote for this 
legislation would be like Members of Congress trying to stand in the 
courthouse door, just like George Wallace stood in the schoolhouse door 
to stop integration of Alabama schools.
  Today it is gay marriage. Tomorrow it will be something else. During 
the 1960s, in 1963, in 1964, in 1965, we heard some of the same old 
arguments. Have we learned anything?
  Forget about the politics. Vote your conscience. Vote with your 
heart, with your soul, with your gut. Do what is right and defeat this 
bill.
  Mr. NADLER. Mr. Speaker, I yield 2 minutes to the distinguished 
gentleman from Florida (Mr. Wexler).
  Mr. WEXLER. Mr. Speaker, in spite of all this rhetoric about 
protecting marriage and saving the country from rogue activist Federal 
judges, the bill we are debating here today does not protect Americans 
from gay marriage. We are not debating a gay marriage bill. We are 
debating a court-stripping bill, and one that is more Draconian than 
any such bill Congress has ever considered.
  Every year, we teach elementary school students throughout America 
about the wisdom of our Founding Fathers, about the precious rights we 
have fought at home and abroad to protect, about our democracy that 
considers all people as equals, and about the delicate system of checks 
and balances upon which all of this is based.
  It is a shame that Members of Congress appear to have forgotten these 
most basic lessons. They have forgotten that our Founding Fathers 
established three equal branches of government, no one more powerful 
than the other; they have forgotten that this system has served us well 
for over 200 years; and they have forgotten that this is a system that 
cannot survive if one branch arbitrarily strips power from another.
  This is not about gay marriage. This is not about respecting 
marriage. For the record, my marriage is not threatened by gays and 
lesbians in Massachusetts or California. What is the heinous crime that 
gays and lesbians have committed? They want to live with the same 
dignity that their fellow Americans live with every day.
  Please vote this bill down.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman 
from Iowa (Mr. King).
  Mr. KING of Iowa. Mr. Speaker, I thank the gentleman for yielding me 
time.
  Mr. Speaker, I sit here and listen to this debate, and it is one of 
many debates on this issue that we have had, and it is one of many we 
will have into the future. And as I listened to the gentleman talk 
about the civil rights, I harkened back to a time when I sat in the 
Iowa Senate, where I heard a senator stand and say the next great civil 
rights crusade is homosexual rights.
  Something about how true that rang to me, it caused me to pay 
attention and understand that was the message. There will always be 
another civil rights crusade. We will never get this right. There will 
always be people that see the glass of rights as half full, like us, 
and some that will say it is half empty, like others.
  I will tell you that this is not a civil right. You can look in title 
VII of the Civil Rights Act, and there it says race, color, religion, 
sex or national origin. Those things are all immutable characteristics, 
with the exception of religion, which is constitutionally protected. 
Immutable characteristics are characteristics that cannot be self-
identified, but can be independently verified, and cannot be changed. 
That is not the case with homosexual marriage.
  I hear other statements. The gentleman from Maryland, ``risk 
undermining public faith in the courts.'' It is the courts that risk 
undermining public faith in the courts. We are establishing public 
faith in the process.
  And the statement made by the gentlewoman from California, ``this is 
nothing more than a back door attempt to amend the Constitution by 
simple majority.'' No, the courts have been continually amending the 
Constitution by the will of a bare majority

[[Page H6590]]

of appointed courts. The transfer of the will of four judges from 
Massachusetts against the will of the people of the United States of 
America is protected by the Constitution, and that responsibility lies 
with us and we must step up to that responsibility.
  So I would ask, and, as we heard from the minority witness in 
hearings, the bottom line of that testimony was that the Congress can 
grant authority to the courts, and we can create courts and that courts 
can grasp authority by decisions that they make; but we can only limit 
the courts by allowing the courts to limit themselves.
  Now, how ridiculous is that? How far-reaching is the power of the 
judicial branch if we will take this position that Congress cannot 
limit the courts when it specifically is in the constitution? We are 
charged not with just the right or the privilege, but the duty and 
obligation, when we swore to uphold this Constitution, to defend the 
separation of powers.
  There is no civil right for marriage, there is a license for 
marriage, and a license is by definition a permit to do something which 
is otherwise illegal. We grant that to marriages for those reasons that 
you have heard some of my colleagues speak to, because the family, the 
father, the mother, the children and the home, is the essential 
building block, not just of this culture and this society and this 
civilization, but every civilization for the last 6,000 years.
  That is what is at stake here, and it is our obligation; and I think 
this is the most essential issue of our time. There is no issue more 
important than defending marriage, because it is the essential building 
block of this society, this civilization, and every civilization. We 
have the duty and obligation.
  Mr. NADLER. Mr. Speaker, I yield 2\1/2\ minutes to the distinguished 
gentleman from New York (Mr. Weiner).
  Mr. WEINER. Mr. Speaker, I thank the gentleman for yielding me time.
  Mr. Speaker, to vote in favor of H.R. 3313, I would say that the 
supporters of the bill have to reach four conclusions:
  One, they have to decide that Marbury v. Madison was wrongly decided. 
Some people on the Committee on the Judiciary freely admitted that. You 
have to agree that when John Marshall wrote, ``If the courts are to 
regard the Constitution and the Constitution is superior to any 
ordinary act of the legislature, the Constitution and not such act 
shall govern the case to which they both apply.''
  Secondly, you have to come to the conclusion that DOMA is going to be 
struck down by this very conservative Supreme Court. Otherwise, why 
would you be here? If you thought the court was going to uphold it, and 
I have to tell you, I went back and I looked at some of the speeches. A 
lot of the debate was whether or not DOMA was constitutional. And, one 
by one, you stood up and said, oh, it absolutely is, it absolutely is, 
it absolutely is.
  So you have to conclude in order to support H.R. 3313 that the 
Supreme Court is about to strike down DOMA, although I do not know 
where you get that indication, unless you believe it was violative of 
the Constitution.
  Third, you have to believe that this clause is more important than 
abortion, more important than gun control, more important than the Flag 
amendment, more important than any other thing, because you are 
including this provision in this bill and you have not done it to 
protect abortion or to ban abortion or to protect gun rights. How come? 
Do you not feel strongly about those things? Do you not want to keep 
the Supreme Court out of those issues?

                              {time}  1430

  And finally, in order to support this, you have to have utter and 
complete contempt for individual rights and freedoms, something I 
thought conservatives stood for.
  What if you are the only person in your State that believes 
something? What if you are the only person in your judicial area that 
believes something? And what if you are right? What if you are 
protected by the Constitution?
  Time and time again I have heard people stand up and say this is 
about doing the will of the people. That is not what the courts are 
supposed to do. The courts are supposed to protect the minority to make 
sure their rights are not trampled on, protect women when they want to 
vote, protect blacks when they want to be considered citizens, protect 
those that want to have the full rights of the Constitution. That is 
what the Court is supposed to guarantee, because that is never what the 
majority does. The majority looks out for the majority rule. That is 
not the role of the legislature, that is the role of the courts.
  If you draw those conclusions that you think DOMA is constitutionally 
flawed, Marbury v. Madison was wrongly concluded, that this is a more 
important issue than abortion, gun control, anything else, and that you 
have contempt for individual rights, vote yes on H.R. 3313.
  Mr. NADLER. Mr. Speaker, I yield 2\1/2\ minutes to the distinguished 
gentlewoman from Texas (Ms. Jackson-Lee).
  (Ms. JACKSON-LEE of Texas asked and was given permission to revise 
and extend her remarks.)
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I thank the distinguished 
gentleman from New York for yielding me this time, and I thank him for 
his leadership.
  I hope that this is viewed by the American people as a singular 
discussion on whether or not, no matter what station in life one may 
hold, whether or not one represents a voice of one or a voice of 
thousands, the constitutional rights that have been protected by this 
Constitution is given to you.
  As I spoke to some of our very able young people that are serving us 
as pages here in the United States Congress, and I am so very proud of 
them because they are inquisitive without being biased or 
discriminatory, but they are not our futures, they are our todays. In 
trying to understand what we are doing today, this is not a 
pronouncement of a constitutional amendment that requires two-thirds of 
this body and three-fifths of our States, an elongated process that 
would allow us to debate the question of whether or not we want to 
preserve the rights of those who are not like us, some of us here, and 
give them the same rights. This is not this debate.
  This is, in fact, a way to sidewind itself around the idea of whether 
or not whoever you are, whether you be a farmer, an environmentalist, a 
parent, someone injured, a young military person fighting on the front 
lines of Iraq, that you come back and the front doors of the courthouse 
have been closed to you.
  I am ashamed that my colleagues would misuse the constitutional 
instruction for the understanding of the three branches of government, 
because Article III does say this: ``The judicial power shall extend to 
all cases in law and equity arising under the Constitution by the laws 
of the United States of America.'' Can you tell me how we can argue 
that we can eliminate someone's right to go into the Court to simply 
ask for relief on their petition.
  I do not want to debate one's religious faith. I cannot equate myself 
to you. I know what I feel in my heart, that all of us are created 
equal. The Declaration of Independence said that we all are created 
equal with certain inalienable rights of life, liberty and the pursuit 
of happiness. I want people to be able to practice their faith. God 
bless them.
  But this is a tragedy, for I stand here as an unequal person in this 
Nation. If it had not been for the courts of this Nation, many of us, 
no matter whether you look like me or have my history, would have the 
doors closed to you.
  So, Mr. Speaker, let me say to my colleagues that the reason why we 
are voting against this, and I ask my colleagues to consider it, 
because it would be damaging and devastating and detrimental to the 
constitutional premise of the Founding Fathers who stood for 3 months 
trying to establish a nation that could keep democracy for now some 200 
years plus.
  The crux of this is to do this: one, it does not provide for the 
equal protection of the law. Two, when the legislature overreaches, you 
have no place to go; you cannot go into courts and find relief. Three, 
I would say that this denies you due process.
  So this is not a question of one's personal determination, it is a 
question of your rights as an American citizen. Might I say to you as 
we look at the rights of American citizens, let me reemphasize, the 
fact that the eliminating of the right to access the appellate courts 
has never been done before.

[[Page H6591]]

To my good friends and colleagues who believe in the Constitution like 
I do, let us own up to the American people, let us own up to them that 
what we are doing is destroying justice as we know it. I would only say 
to my colleagues that I love America, and I would only hope that when 
we stand to vote that no one looks to see who is who, only to recognize 
that each of us are equal under the law and should have our right of 
access to our courts.
  Mr. Speaker, marriage is important. Marriage is a concern of many 
Americans, but so is equal protection, due process and the right of 
judicial review for a contentious matter raising constitutional issues 
and questions of law.
  Mr. Speaker, I strongly oppose this legislation. Everything from its 
name to its provisions are in contravention of the principles on which 
the original Framers of the Constitution created that respected 
document.
  We can see that this proposal purports to deceive our colleagues even 
in its title. How can this legislation ``protect'' marriage when it 
precludes access to Federal courts when married couples seek judgment 
on the merits and validity of their union? A colleague of ours in the 
Senate was cited, in the context of the Defense of Marriage Act (DOMA) 
that recently passed, as stating that same-sex marriages threaten a 
5,000 year history of the man-woman union as the ``proper union.''
  However, this argument, along with the bill before us today, fails to 
constitutionally address the cause that its proponents intend. The bill 
before us today, as well as DOMA, are overbroad in their scope.
  Article III, Section 2 of the United States Constitution states that 
``The judicial Power shall extend to all Cases, in Law and Equity, 
arising under the Constitution, and the Laws of the United States . . . 
(emphasis added).''
  Today's debate concerns the question of whether we decide to strip 
the Federal courts of their constitutionally-vested powers to even 
decide whether it will hear a matter--justiceability. H.R. 3313 takes 
the decision away from the Federal courts in the area of 
justiceability.
  First of all, the institution of marriage has roots that stem from 
religion. Given that we have a great myriad of different religions and 
creeds that have a wide spectrum of perspectives on marriage, it is 
unrealistic to draft a single bill to mandate what character we will 
accept for this union. Furthermore, man is not so omniscient that he 
can, alone, determine what a legitimate union is.
  If my colleagues on the other side of the aisle profess to have a 
formula for the appearance of the ``traditional'' or ``acceptable'' 
marriage, I ask them whether the following types of family arrangements 
fit their criteria: single parent, divorced, unmarried parents.
  If our colleagues can summarily decide that a same-sex union does not 
comport with our ideal of ``family'' or ``marriage'' because it is not 
the union of a man and a woman, how do they characterize the above 
unions?
  On the aspect of overbreadth, this bill, while purporting to protect 
our view of what an ``acceptable marriage'' is, strips the courts of 
jurisdiction, strips our Federal judges on the discretion that they 
have retained for years, and strips tax-paying Americans of their 
legitimate right to have their causes heard by a Federal court.
  As a threshold matter, we as lawmakers should enact legislation that 
summarily abridges or curtails access to Federal courts only in extreme 
cases or as a last resort. Furthermore, we should use the same 
philosophy as it pertains to amending the U.S. Constitution. The bill 
introduced in the Senate, as well as the bill before us today, amend 
the document that was created by the original Framers and strip Federal 
judges of their discretion on the issue of justiceability.
  Lastly, I would have offered an amendment that would simply allow the 
Supreme Court, the highest court in the land, to retain its 
jurisdiction to hear these matters. It would be at the least, arrogant 
of legislators to think that their judgment, experience, and expertise 
would make them better arbiters on this issue than life-appointed 
judicial officials whose job it is to make determinations concerning 
our laws. The high court has made so many rulings that have changed the 
lives of minorities, women, children, the disabled, and many other 
aggrieved individuals and classes that stripping it of its ability to 
continue this effort would be injurious to the entire Nation.
  Mr. Speaker, for the above reasons, I strongly oppose this 
legislation.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2\1/2\ minutes to the 
gentleman from Illinois (Mr. Hyde), the distinguished former chairman 
of the Committee on the Judiciary.
  (Mr. HYDE asked and was given permission to revise and extend his 
remarks.)
  Mr. HYDE. Mr. Speaker, I think this is a wonderful debate. It is 
something that I have waited for years to listen to, because these are 
very important questions and the Constitution is everybody's business. 
It is certainly ours.
  What we are really debating is what does Article III, Section 1, 
clause 1 mean. The power to court strip, is it there, and if it is 
there, why is it a mortal sin for Congress to exercise it? I do not 
know.
  The Court is not the only repository of wisdom, nor of due process. 
We could have a seminar some day on the first amendment. Why does the 
establishment clause dominate jurisprudence concerning the relationship 
of religion and the State, but not the free exercise, which is ignored, 
which withers on the vine? What about the 10th amendment, which says 
all matters not enumerated to the Court are reserved to the people? It 
is ignored. It has been ignored for generations.
  So as we raise up the Court as the sole repository of wisdom and 
justice and fair play, we are not very historical because they are 
capable of abuses, too.
  Now, democracy requires checks and balances. We know that. What is 
the check and balance on the Supreme Court? Unelected, these are people 
who are well connected and they get confirmed, and they are imperial in 
their scope, and no check and balance whatsoever.
  Now, I would rather have a check and balance on the Court, just as I 
want one on the Congress, and the best check and balance is the people, 
the people who do the electing. That is what Article III, Section 1, 
clause 1 does. It reserves to the people the ultimate decision on a 
given issue.
  Well, I just want to say for a court of last resort, I think ``the 
people'' is superior to these people who are nominated and confirmed 
and unelected and sit for life. I have never heard of an imperial state 
in this country, but I have heard of an imperial court.
  This is not the end of the world; this is fulfilling the very 
language that our Founding Fathers were wise enough to incorporate into 
the Constitution, and all of the sky-is-falling-down rhetoric is 
misconceived, in my judgment.
  Mr. NADLER. Mr. Speaker, I am pleased to yield 3 minutes to the 
distinguished gentleman from Massachusetts (Mr. Frank).
  Mr. FRANK of Massachusetts. Mr. Speaker, I disagree with my friend 
from Illinois. This does not take the matter out of the courts; it 
takes the matter of constitutionality away from the United States 
Supreme Court and confers it on the 50 State supreme courts.
  What this bill says is, no court created by act of Congress and the 
Supreme Court shall have no jurisdiction to hear or decide any question 
pertaining to, among other things, the validity under the Constitution 
of Section 13, et cetera.
  The State courts have, as has been acknowledged, also the right to 
interpret the Federal Constitution. Frankly, from the standpoint of 
there being more same-sex marriages under the Full Faith and Credit 
Clause, I think there would be more if this bill became law. I do not 
want the bill to become law because of its terrible precedential 
consequences. But, frankly, the likelihood that this U.S. Supreme Court 
will find that full faith and credit compels the nationwide recognition 
of same-sex marriages is quite slight. It is likelier that there are 
four, five or six State courts that will find that.
  So what you are saying is not that the people will decide it as 
opposed to the courts, the courts presumably made up of aliens that you 
have appointed in many cases, but the fact is that it will be decided 
by State supreme courts.
  Now, this is the problem. The gentleman from Wisconsin says there is 
precedent. He is wrong. All of the things he cited had to do with 
administrative matters, with deportees who are by definition 
noncitizens and who do not have the same rights. There is no case in 
American history of this language: you cannot decide any question 
pertaining to the validity under the Constitution. This is the first 
time we have said, not that it will not be litigated, but it will not 
be decided by the U.S. Supreme Court. What you are doing here, you are 
not repealing anything except the Constitution by going back to the 
Articles of Confederation.
  Here is the problem, and it is not just about same-sex marriage. As I 
have

[[Page H6592]]

said, I think there will probably be more State courts that will find 
full faith and credit than national. But we all know that we never in 
this body do anything only once. The gentleman from New York (Mr. 
Weiner) was right when he said, what about other issues. Once you 
establish this as the way you show your fealty to a principle, it will 
be demanded with regard to everything else. This will become 
boilerplate. So on issue after issue we will pass legislation, and we 
will say, but it cannot be questioned by the Supreme Court.
  Now, I can tell you, on the Committee on Financial Services on which 
I serve, the business community of the United States overwhelmingly 
comes to us and says we need uniformity, we need uniformity. What you 
are enacting here today does not say the courts do not have the final 
say; it says that instead of there being one United States Supreme 
Court binding interpretation on constitutional questions that are 
controversial, there will be different State court interpretations, and 
the impact will be much less on same-sex marriage than on economics, on 
land-takings, on gun control and a whole range of other issues.
  Mr. NADLER. Mr. Speaker, I yield 1\1/2\ minutes to the distinguished 
gentleman from Illinois (Mr. Emanuel).
  Mr. EMANUEL. Mr. Speaker, at every critical juncture in American 
history, each preceding generation has been asked to pick between 
equality and inequality, justice and injustice. In that struggle, our 
predecessors always tipped the scale in favor of equality and justice, 
and always widening the circle of democracy. And in widening that 
circle of democracy, America's character and her democratic values were 
renewed.
  Today we are taking a reactionary departure from constitutional 
history. Our congressional predecessors never successfully attempted 
such an extreme measure as this, because they knew it would violate 
every principle that defines America, but this Congress and its 
majority leaders, in its infinite wisdom, will take that radical step 
today.
  The majority leader asked for a debate known for its tolerance 
concerning a piece of legislation that is neither tolerant nor 
respectful of debate. The proponents of this legislation say, this is 
an effort to protect the institution of marriage. Half of all marriages 
end in divorce. Divorce threatens marriage. So why do we not deny 
access to the Federal courts to divorcees?
  If you are worried about your marriage, read your vows and leave our 
Constitution alone.
  Today we are not defending marriage; we are defeating the 
Constitution. Thomas Jefferson wrote in the Declaration of Independence 
that all men are created equal, but maybe George Orwell is more 
appropriate today: all are equal, but some are more equal than others.
  Mr. NADLER. Mr. Speaker, I yield 1 minute to the distinguished 
gentlewoman from California (Ms. Woolsey).
  Ms. WOOLSEY. Mr. Speaker, this bill, H.R. 3313, is not about gay 
marriage, it is about taking away access to the Federal judiciary while 
manipulating our Constitution by using a wedge issue. It is about 
degrading the role that Federal courts have played in the enforcement 
of civil rights law. It is about preventing challenges by individuals 
and groups of Americans who are needy and deserving of their day in 
court. Most of all, this bill is about ignoring the Constitution.
  We must protect the system of checks and balances that our Founding 
Fathers created. We must refuse to create this dangerous precedent.
  This legislation would be precedence for removal of Federal court 
jurisdiction for other contentious constitutional civil rights issues 
such as gun rights, religious protections, civil rights.
  Mr. Speaker, this is just plain bad policy. Do not support this bill. 
Know what the proponents are after and do not let them bully you into 
eroding our judicial protections.

                              {time}  1445

  Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman 
from Missouri (Mr. Akin).
  (Mr. AKIN asked and was given permission to revise and extend his 
remarks.)
  Mr. AKIN. Mr. Speaker, I have heard a number of people saying today 
that this is not about the institution of marriage. It most certainly 
is about the institution of marriage. It is also how marriage is going 
to be defined. I somehow cannot get my mind around the concept that the 
Founders' idea was that a bare majority in one State court and a bare 
majority in the Supreme Court can redefine the word of marriage and 
shove that down the throats of 49 other States. Somehow that does not 
seem to make sense. The Democrats here have been suggesting that the 
Supreme Court should be totally sovereign in every decision, and that 
one also I find rather puzzling, because the first foray of activist 
judges on the Supreme Court was that brilliant decision of Dred Scott, 
which said that African Americans are not actually people.
  Now, if every decision of the Supreme Court is gold, how about this 
one? And what was the result of this little act of activism? Well, they 
are the wonderful folks who gave us the Civil War. I just cannot 
understand the logic of saying and talking about the idea of separation 
of powers and checks and balances and at the same time say, anything 
the Supreme Court says goes. That is what I am hearing argued today.
  The question is when the Supreme Court gets really goofy, and my 
friends, we can pick how goofy is goofy, but when they really start 
legislating from the bench, at what point and what is the mechanism to 
hold them in check? Well, whose job is it? Well, it has been made 
reference to here. We take an oath of office to uphold the 
Constitution. It is our job, my friends, as legislators, and it is the 
job of the President, who also seeks to uphold the Constitution.
  Now, there is one other thing that has been stated that some staffers 
probably should be let go, because they have not done their homework. 
Because if we take a look in the 107th Congress alone, we can take a 
look and see that the expedite, the construction of the World War II 
memorial has article III, section 2, the American Service Members 
Protection Act. Article III, section 2 language, Aviation Security Act. 
This is all 107th Congress alone. PATRIOT Act, article III, section 2 
language. Intelligence Authorization Act, article III, section 2. 
Terrorism Risk Insurance Act, and also the Department of Justice 
Authorization Act, that is not to mention a particular elected 
representative from South Dakota who said no court can have anything to 
say about his clearing the undergrowth from his forest.
  The question before us is a question of whether or not a redefinition 
of marriage is going to be imposed on all of our States by a few 
activist judges. Believe me, the answer should be no.
  Mr. NADLER. Mr. Speaker, I yield to the gentleman from Washington for 
purposes of a unanimous consent request.
  Mr. McDERMOTT. Mr. Speaker, I rise against this amendment.
  (Mr. McDERMOTT asked and was given permission to revise and extend 
his remarks.)
  Mr. McDERMOTT. Mr. Speaker, what the Republicans are doing today is a 
``needless, futile and utterly dangerous abandonment of constitutional 
principle . . . without precedent or justification.'' These were the 
very words used by the Senate Judiciary Committee in 1937 when they 
opposed President Roosevelt's court packing scheme. it was exactly 67 
years ago today that the U.S. Senate voted down that dangerous plan.
  Mr. Speaker, the legislation that you are asking this August body to 
consider is no less dangerous. This legislation, the so-called Marriage 
Protection Act, is championed by the Republican leadership. It aims to 
manipulate, to indeed disrobe the Third Branch of our government, The 
Judiciary.
  Any why, Mr. Speaker? Because the Republican Party and this 
Republican Congress wishes to deny a particular class of people their 
right to come before the federal courts and defend their unalienable 
rights. What a horrible precedent.
  Mr. Speaker, Alexander Hamilton--the man on our ten dollar bill--in 
Federalist 78 said that the courts of justice are the bulwarks of a 
limited constitution against legislative encroachments, and are there 
to safeguard the private rights of particular classes of citizens 
against unjust and partial laws. What the Republican bill does is 
attack the very foundation upon which our Founding Fathers built this 
great republic.
  The Republican party says that we ``need to protect marriage from 
activist judges.'' Maybe

[[Page H6593]]

there are a few activist judges out there, but this bill strips all 
federal courts--even the Supreme Court--from considering the 
constitutionality of a federal law that attacks the rights of a 
particular class of people.
  The Defense of Marriage Act is clearly a legislative encroachment 
upon the Constitutional rights of Homosexuals. Why else would you bring 
a bill out here that denies judicial review over that unjust and 
partial law?
  Mr. NADLER. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from 
Maryland (Mr. Wynn).
  Mr. WYNN. Mr. Speaker, I rise today in opposition to the Marriage 
Protection Act. I took an oath when I came here to protect and defend 
the Constitution. This bill obliterates the Constitution.
  Let me first make an observation. I am married, and many of my 
colleagues are married. I do not think my marriage or my colleagues' 
marriages are threatened because two gay people in Massachusetts want 
to get married. Maybe it is threatened by meddling in-laws, but 
certainly not by some legislation that passed in Massachusetts.
  But I make that observation as an aside. This bill really is not 
about marriage, gay or otherwise. This bill is about the Constitution. 
This legislation sets a very dangerous precedent. It says that we are 
going to set aside our very cherished separation of powers that is 
provided in the Constitution that enables the courts to check us, to 
say, wait a minute, Congress, you have gone too far. My colleague says, 
well, we have the right to make laws. We do. If we do not like it, we 
can amend the Constitution; but my Republican colleagues are not trying 
to amend the Constitution. They are trying to change the Constitution 
by stripping the courts. We need the separation of powers. We need the 
courts to independently review the things that we do here in Congress.
  Think about it. If we can strip the court's jurisdiction, the Supreme 
Court's jurisdiction over this matter, what about civil rights laws? 
Could not some Congress come down here and say, well, we do not need 
the Federal courts or the Supreme Court ruling on civil rights laws? 
What does that mean? It means that a State court in Arkansas can say 
one has this right, while another State court in Nevada could say, oh, 
no, you do not. That is not what the Founders envisioned. This is a 
very dangerous vision of America in which the courts do not play a 
critical role. Let us retain the Constitution as we know it.
  Mr. NADLER. Mr. Speaker, I yield 1\1/2\ minutes to the gentlewoman 
from California (Ms. Lee).
  Ms. LEE. Mr. Speaker, I thank the gentleman for yielding me this time 
and for his leadership.
  This is really a sad day. By stripping away the jurisdiction of the 
Federal courts and the Supreme Court to hear challenges to the Defense 
of Marriage Act, this bill opens the door to further court-stripping of 
additional rights. What is next, the right to vote, the right to 
assemble, the right to a trial, the right to privacy? Congress would 
undo over 200 years of history and could potentially rewrite the Bill 
of Rights, gutting Federal protections against discrimination that are 
enshrined within the 14th amendment. Where would we be today without a 
way to redress our grievances against ill-conceived or discriminatory 
legislation passed by earlier Congresses?
  Would interstate travel still be segregated? Would the separate but 
equal doctrine still exist? Where would we have been without Brown v. 
Board of Education, Roe v. Wade, or other sufficient landmark court 
decisions?
  From now on will we seek to limit the ability of the Federal courts 
to hear challenges to any law just because one side or the other 
opposed it? What does an approach like this bode for the future of our 
democracy? So why are we doing this? Why are we doing this? I think we 
are undermining our Constitution today, quite frankly, about trying to 
get more votes in November. That is why we are doing this. Vote ``no'' 
on this dangerous bill.
  Mr. SENSENBRENNER. Mr. Speaker, I yield to the gentleman from Iowa 
for purposes of a unanimous consent request.
  Mr. LEACH. Mr. Speaker, I rise in opposition to this bill.
  (Mr. LEACH asked and was given permission to revise and extend his 
remarks.)
  Mr. LEACH. Mr. Speaker, America is divided on many issues, perhaps 
none more emotive than that which surrounds family values and the 
institution of marriage.
  For many Americans definitions are critical. Traditionalists believe 
the term marriage can only properly be applied to a union between a man 
and a woman. Non-traditionalists, particularly in the gay community, 
believe that qualification under law for marriage or other forms of 
civil unions should be provided to same sex couples and that without 
changes in law to allow such to occur some citizens will have less 
personal security and legal protection than other elements of the 
American community.
  Historically, issues of marriage come under the primary jurisdiction 
of State law, but because States may have different approaches and 
because there is under our Constitution a recognition that legal 
arrangements made in one State are generally to be respected in others, 
the Congress chose several years back (1996) to pass a law called the 
Defense of Marriage Act (DOMA) to allow States not to recognize the 
validity of same-sex marriages performed in other States.
  The measure before Congress today is H.R. 3313, an act which would 
deny Federal courts, including the Supreme Court, the right to review 
the constitutionality of the Defense of Marriage Act.
  The arguments on the floor today have largely swirled around the 
issue of marriage. My view is that the bigger issue is process. In 
America, process is our most important product. Our constitutional 
system was established with checks and balances. To curb the prospect 
of concentration of power our Founders created three branches of 
government--executive, legislative, and judicial--and then 
quadruplicated these balancing arrangements by creating executive, 
legislative, and judicial entities at the state, county and city 
levels.
   At any moment in time there will be conflict among various branches 
and between various levels of government. This discord is sorted out 
through time tested processes involving compromises, give and take, and 
at critical moments, definitive decision-making.
   In this case, whether one supports or opposes expanding marriage 
definitions or favors compromise approaches such as sanctioning civil 
unions, it is a dubious precedent to deny a key component of the 
American governmental system--federal courts--the power to exercise its 
constitutional responsibilities.
   Although the Constitution gives Congress broad authority to define 
the jurisdiction of courts, Congress has historically been cautious in 
limiting the power of courts to review substantive law. to do so would 
wreak havoc with the separation-of-power doctrine and our legal system.
   If one of the objectives in the bill before us is to rein in a 
runaway judiciary, we might be equally concerned about creating runaway 
legislative precedents. Barry Goldwater, who was no friend of activist 
judges, noted a decade ago when referring to previous court stripping 
attempts: ``frontal assault on the independence of the Federal courts 
is a dangerous blow to the foundations of a free society.'' It opens up 
a can of worms, making all controversial issues vulnerable to similar 
``court stripping'' legislation.
   It is this court stripping precedent which is primarily at issue 
today. But it is not the only process problem on the table. One 
consequence of passage of H.R. 3313 is that it would allow each of the 
50 State supreme courts to define DOMA's constitutionality but leave 
the U.S. Supreme Court powerless to sort out the constitutional mess. 
Confusion rather than legal clarity would be the likely result.
   Judicial review is the heart of constitutional governance. To tamper 
with the power of courts is a perilous undertaking.
   The only oath Members of Congress take upon assuming office is to 
uphold the Constitution. The founders, who had extensive experience 
with political persecution, wrote a Constitution which did not put 
exclusive power in the legislative and executive branches because they 
wanted to place a check on popular will as well as capricious executive 
governance. As Madison wrote in Federalist No. 48, ``an elective 
despotism was not the government we fought for . . .''
   Constitutionalism is not majoritarianism. The rights of minorities 
must be respected and all citizens provided due process under the law. 
Accordingly, I am convinced the constitutional obligation is to vote 
``no.''
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman 
from Texas (Mr. Neugebauer).
  (Mr. NEUGEBAUER asked and was given permission to revise and extend 
his remarks.)
  Mr. NEUGEBAUER. Mr. Speaker, I rise today in support of H.R. 3313, 
the Marriage Protection Act of 2004, and in defense of the institution 
of marriage in America.
  In 2003, the Texas State Legislature defined marriage as a union 
between

[[Page H6594]]

one man and one woman. Texas joins 37 other States that have enacted 
similar legislation defending traditional marriages.
  With the Defense of Marriage Act, Congress declared that no State can 
be forced to accept another State's definition of marriage. 
Unfortunately, these actions are not enough. We have seen time and time 
again the will of the people can be overturned by the actions of a few 
judges.
  Currently, Federal lawsuits attacking the institution of marriage are 
underway in several States across the country. If these lawsuits are 
successful, the voice of the people in Texas and the voice of the 
overwhelming majority of Americans will be ignored.
  Without the Marriage Protection Act, it is possible that Federal 
judges in California can determine the definition of a marriage in 
Texas or any other State which tries to protect marriage.
  This attack against marriage goes against every value that I and the 
vast majority of my constituents hold dear. For these reasons I 
strongly urge the passage of H.R. 3313.
  Mr. NADLER. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman from 
Texas (Mr. Bell).
  Mr. BELL. Mr. Speaker, as the Democratic leader pointed out earlier, 
this year marked the 50th anniversary of the historic Brown v. Board of 
Education decision, and thinking about that decision in the context of 
today's debate, I think we have to ask ourselves what if some of our 
segregationist forefathers who felt every bit as strongly about the 
issue of race as many people here today feel about the issue of gay 
marriage, what if they had succeeded in passing some radical 
legislation to prevent any Federal court challenge to the law of 
separate but equal?
  Well, obviously, the progress that we have witnessed in the area of 
civil rights would have been at the very least stymied and most likely 
prevented altogether. And the real question is they might have no 
problem with the law that they seek to protect today, but they might 
have very big problems with the law that they seek to protect tomorrow; 
and ladies and gentlemen, we cannot cherry-pick. We cannot control what 
might come forth in the future, because once this genie is out of the 
bottle, it is out for good.
  And the bottom line is, this is not. This is not how our country 
works. Just how far are we going to let extremists go in tearing down 
what makes this country great?
  And, yes, open courts, open courts where free people can go in and 
fight for what they believe is right are a part of what makes this 
country great; and just because it is an election year, just because it 
is an election year and some wish to fan the flames of an incredibly 
controversial issue, let us not make the unforgivable mistake of 
closing off our courts. It is un-American; it is wrong. Vote ``no.''
  Mr. NADLER. Mr. Speaker, I yield 1 minute to the gentlewoman from 
California (Ms. Loretta Sanchez).
  Ms. LORETTA SANCHEZ of California. Mr. Speaker, I thank the gentleman 
for yielding me the time.
  I rise today in strong opposition to H.R. 3313. I call it the 
``Offense to the Constitution Act.'' Not only does this bill have 
nothing to do with what it pretends to address, but it attacks one of 
the fundamental principles of our American democratic system, the 
separation of powers.
  The Founding Fathers wisely separated the powers of the executive, 
the legislative, and the judicial branches so as to avoid an abuse of 
power by any one of the three. This administration was cemented and 
codified in great historic American cases like Marbury v. Madison. H.R. 
3313 is a direct attack on the separation of powers and the legacy of 
those cases. It says: ``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, section 
1738C or this section.''
  Protect the Constitution. Vote down this bill. Vote ``no'' on H.R. 
3313.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 2 minutes to the gentleman 
from Nebraska (Mr. Osborne).
  Mr. OSBORNE. Mr. Speaker, I am not a constitutional scholar, 
obviously. I spent 40 years working with approximately 2,000 young 
people. I actively recruited those young people to go to the University 
of Nebraska. I visited annually 60 to 70 of them personally in their 
homes and met their parents, and I saw firsthand the difference a 
family makes, for better or for worse.
  In my experience, the marriage findings of 12 leading family scholars 
who summarized thousands of studies on child rearing are as follows: 
children raised by both biological parents within a marriage are less 
likely to become unmarried parents, live in poverty, drop out of 
school, have poor grades, experience health problems, die as infants, 
abuse alcohol and drugs, experience mental illness, commit suicide, 
experience sexual and verbal abuse, engage in criminal behavior. And 
then they concluded with this statement that I think is noteworthy: 
``Marriage is more than a private emotional relationship. It is also a 
social good. It is the bedrock of our culture.''
  And so what I observed was that a father contributes something unique 
to the welfare of a child. A mother also makes a unique contribution. 
Several countries, notably in Scandinavia, have changed the traditional 
definition of marriage. There has always been a decline of traditional 
marriage and a surge of out-of-wedlock births in these countries, and 
children born in such circumstances, on average, suffer significant 
dysfunction.
  So the question before us is this, as I see it: Do we allow a small 
number of members of the judiciary to alter an institution which has 
been the backbone of this Nation? Do we allow these same jurists to do 
so with a great majority of our citizens and our States firmly in 
opposition to a change? Forty-four of 50 States have laws defining 
marriage in a traditional manner.
  Again, Mr. Speaker, this is a matter that speaks directly to the 
welfare of our children, the future of our country, and I urge support 
of H.R. 3313.
  Mr. NADLER. Mr. Speaker, I yield 1 minute to the gentleman from 
Washington (Mr. Baird).
  Mr. BAIRD. Mr. Speaker, I thank the gentleman from New York for 
yielding me this time.
  My friends, surrounding us here are profiles of the great law givers. 
There are two Americans up there, Jefferson and Mason. Mason did not 
sign the Constitution at the Convention. He did not, because it did not 
have a Bill of Rights in it. Jefferson, on his epitaph, looked at as 
one of his proudest accomplishments, was the establishment of the 
clause providing for religious freedom in the State of Virginia.

                              {time}  1500

  We have 900 dead Americans in Iraq, thousands more wounded, we have a 
$600 billion deficit, we have 3 million Americans without jobs, 37 
million kids are born in poverty in this country, and we are here today 
proposing to try to take away one of the three pillars of a three-
legged stool that has made our country so strong for so many years.
  Do not do this. A three-legged stool cannot stand. A society that 
does not have a judiciary to protect the rights of the minority will 
ultimately degenerate, and we must not let that happen.
  Mr. NADLER. Mr. Speaker, I yield 1 minute to the distinguished 
gentleman from New York (Mr. Crowley).
  (Mr. CROWLEY asked and was given permission to revise and extend his 
remarks.)
  Mr. CROWLEY. Mr. Speaker, I thank the gentleman from New York for 
yielding me this time.
  We will hear the word ``distraction'' a great deal in the next couple 
of weeks because that is what is happening here today.
  The 9/11 Commission came out with a report today and instead of 
focusing on and discussing the issues pertaining to the 9/11 
Commission's report, we are here today debating a bill that in essence 
will change the Constitution without going through the formalities of 
actually changing the Constitution.
  We have 2 million people who are unemployed today in this country who 
would like to work but do not have the opportunity to do so today. We 
have 44 million Americans in this country today who do not have health 
insurance coverage, and yet we are here today debating this bill on the 
floor that will undermine the rights and privileges, not only of people 
who are gay or lesbian in the country but all

[[Page H6595]]

Americans, if this bill were to become law.
  Mr. Speaker, I ask my friends and colleagues to vote down this bill. 
This bill is unfair and unjust. It will undermine the very premise of 
our Constitution. I challenge my colleagues to please vote down this 
bill.
  Mr. SENSENBRENNER. Mr. Speaker, I yield 3 minutes to the gentleman 
from Florida (Mr. Stearns).
  (Mr. STEARNS asked and was given permission to revise and extend his 
remarks.)
  Mr. STEARNS. Mr. Speaker, first of all, most of the folks on that 
side of the aisle keep talking about that we are mending and changing 
the Constitution. But I think the argument has been shown to be 
overwhelmingly wrong and the gentleman from New York (Mr. Nadler) will 
have to agree, and he would now say clearly, it does not violate the 
Constitution to pass this bill. And I think others will agree with 
that.
  So the people that come down here and say it violates the 
Constitution are wrong, for your side of the aisle to say we are 
violating the Constitution, amending and changing it, clearly we are 
not.
  The distinguished chairman of the Committee on the Judiciary has 
given you nine examples, recent examples, of where we have used almost 
the same clause or language to do the same thing we are doing today. 
Did you know that to expedite construction for the World War II 
Memorial we did this same thing. We did it for the Terrorist Risk 
Insurance Act, the Department of Justice Authorization Act, which I am 
sure the gentleman from New York (Mr. Nadler) voted for. The 
Intelligence Act, the PATRIOT Act, even for campaign finance reform in 
which the majority of the people on that side of the aisle voted for.
  But now let us talk about the Daschle Act. Now that is more recent 
and I think something we should mention. The distinguished chairman of 
the Committee on the Judiciary mentioned it, but I just want to read to 
you what Senator Daschle actually said on the Senate floor when he 
said, Due to extraordinary circumstances, timber activities will be 
exempt from the National Forest Management Act and National Environment 
Policy Act. And these exemptions are such that they are not subject to 
judicial review by any United States court. I'd say Senator Daschle 
blanketed it completely.
  Let us get to the real issue. The real issue is not whether the 
language in this bill is exempting U.S. courts. The real issue is the 
Defense of Marriage Act. But the Defense of Marriage Act was voted for 
overwhelmingly by many folks, on that side of the aisle and of course 
ours, but now you are claiming a technicality by saying we are 
violating the Constitution. But we all know that we do not want a 
handful of judges overturning the will of individual States and 
millions of Americans.
  DOMA relied on the principle of federalism, which is a defined 
concept in our Constitution, to defend States rights and to preserve 
the sanctity of marriage. It was a perfect match, at least we thought 
it was, until we found out several events later that the Supreme Court 
1997 decision in Roemer v. Evans overturned a popular referendum in 
their ruling. Last year in Lawrence v. Texas the Supreme Court ignored 
a States right to determine its own public policy standard and 
overturned its previous court ruling, which in turn created a new right 
out of thin air. For years the Federal Courts have been taking 
jurisdiction away from Congress. It is only proper that we exercise our 
constitutional right to limit their jurisdiction.
  So I would say to my colleagues, if you are against the Defense of 
Marriage Act, why do you not argue that and do not use the 
technicalities of saying we are violating the Constitution because you 
know that is not true. And I have given you at least nine examples here 
of where you on that side of the aisle have voted for the same, almost 
the same language.
  Now the gentleman from Massachusetts indicated that in this bill 
there is unique language we have never seen before. Now Mr. Speaker all 
of us have heard songs before and lots of times those songs sound the 
same way. But they do not have the same language or exact words. Those 
songs may sound the same, but they do not have the same words. 
Likewise, this bill does the same thing as the other bills I mentioned, 
but the language may not be the same.
  Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I place into the Record the case of Biodiversity 
Associates v. Cables, which contrary to the gentleman from Florida (Mr. 
Stearns) ruled that the Daschle bill did not apply to preclude court of 
appeals review as the legislation's constitutional validity.

                    Biodiversity Associates v. Cable

       Biodiversity Associates and Brian Brademeyer, Plaintiffs-
     Appellants, Sierra Club and the Wilderness Society, 
     Plaintiffs, v. Rick D. Cables, in his official capacity as 
     Regional Forester of the Rocky Mountain Region of the U.S. 
     Forest Service; Dale N. Bosworth, in his official capacity as 
     Chief of the U.S. Forest Service; John C. Twiss, in his 
     official capacity as Supervisor of the Black Hills National 
     Forest; U.S. Forest Service, Defendants-Appellees, Larry 
     Gabriel, in his official capacity as Secretary of the South 
     Dakota Department of Agriculture; Black Hills Regional 
     Multiple Use Coalition; Black Hills Forest Resource 
     Association; Meade County, Lawrence County, and Pennington 
     County, all political subdivisions the State of South Dakota, 
     * Defendants-Intervenors-Appellees.
       * Mr. Cables, Mr. Bosworth and Mr. Gabriel, who are the 
     successors in office of Lyle K. Laverty, Michael Dombeck and 
     Darrell Cruea, respectively, have been substituted as parties 
     pursuant to Fed. R. App. 34(c)(2).


                              no. 03-1002

          united states court of appeals for the tenth circuit

                357 F.3d 1152; 2004 U.S. App. LEXIS 1702

                       (February 4, 2004, Filed)

       Prior History: Appeal from the United States District Court 
     for the District of Colorado. (D.C. No. 99-N-2173).
       Disposition: Affirmed.
       Counsel: Ray Vaughn of WildLaw, Montgomery, Alabama (Steve 
     Novak of WildLaw, Asheville, North Carolina, with him on the 
     briefs), for Plaintiffs-Appellants.
       Kevin Traskos, Assistant United States Attorney (John W. 
     Suthers, United States Attorney, with him on the brief), 
     Denver, Colorado, for Defendants-Appellees.
       Diane Best, Assistant Attorney General (Lawrence E. Long, 
     Attorney General; Charles D. McGuigan, Assistant Attorney 
     General, with her on the brief), State of South Dakota, 
     Pierre, South Dakota, for Defendants-Intervenors-Appellees.
       Judges: Before Murphy, Circuit Judge, Brorby, Senior 
     Circuit Judge, and McConnell, Circuit Judge.
       Opinion By: McConnell.
       For many years, Congress has been unable to come to 
     agreement on nationwide legislation to address the dangers of 
     insect infestation and fire in the national forests. In 2002, 
     however, in a rider to a supplemental appropriations act for 
     the war on terrorism, Congress passed legislation applicable 
     to selected sections of the Black Hills National Forest in 
     South Dakota and nowhere else, permitting logging and other 
     clearance measures as a means of averting forest fires. The 
     legislation specifies forest management techniques for these 
     lands in minute detail, overrides otherwise applicable 
     environmental laws and attendant administrative review 
     procedures, and explicitly supersedes a settlement agreement 
     between the Forest Service and various environmental groups 
     regarding management of these lands.
       The question presented is whether the extraordinary 
     specificity of this legislation, coupled with its 
     displacement of a settlement agreement, amounts to 
     congressional violation of the Constitution's separation of 
     powers, by invading the province of the executive branch, the 
     judicial branch, or both. We hold that it does not. Article 
     IV, Sec. 3, cl. 2 expressly grants Congress ``Power to 
     dispose of and make all needful Rules and Regulations 
     respecting the Territory or other Property belonging to the 
     United States.'' With respect to this power--like most of its 
     enumerated powers--Congress is permitted to be as specific as 
     it deems appropriate. Moreover, settlement agreements between 
     private litigants and the executive branch cannot divest 
     Congress of its constitutionally vested authority to 
     legislate.


                               background

       The first law involved in this case is the law of 
     unintended consequences. Fire suppression efforts conducted 
     over more than a century in large parts of the West have had 
     the unintended effect of transforming forests from savannah-
     like grasslands studded with well-spaced large, old, fire-
     resistant trees, into thicker, denser forests. Prior to the 
     arrival of Europeans, these forests experienced frequent, but 
     relatively mild, forest fires caused primarily by lightning 
     and Native American activity. These fires would clear the 
     forest floor of undergrowth and saplings while leaving the 
     larger trees unscathed. The denser forests produced by fire 
     suppression accumulate more combustible fuel and are more 
     vulnerable to infestations, such as mountain pine beetles, 
     and to fires far more intense and devastating than those of 
     the pre-settlement era. Forestry experts are divided as to 
     the response to these conditions.

[[Page H6596]]

     Some advocate a hands-off approach, allowing fire (outside 
     areas of human habitation) to reconstitute the forests in 
     their natural state; some advocate controlled burns; and some 
     advocate thinning and fuel removal. The role of commercial 
     logging as part of the last approach has been particularly 
     controversial.
       From 1983 to 1997, the Beaver Park Roadless Area, a 
     relatively pristine portion of the Black Hills National 
     Forest, was free of logging activity, apparently because the 
     land management plan then in place did not allow it. In 1997, 
     however, the Forest Service approved a new Black Hills 
     National Forest plan revision (the ``1997 Revised Plan''), 
     which allowed logging in a significant portion of Beaver 
     Park's 5,109 acres. It subsequently began preparations for a 
     timber sale in an area called the ``Veteran/Boulder Project 
     Area,'' which included most of the Beaver Park land newly 
     authorized for logging. Especially in a part of the area 
     known as Forbes Gulch, a major purpose of the logging was to 
     counter an infestation of mountain pine beetles. The Forest 
     Service proceeded to clear various administrative hurdles in 
     preparation for the Veteran/Boulder timber sale, issuing a 
     final environmental impact statement on the proposed sale and 
     records of decision approving timber harvest both inside and 
     outside the Beaver Park Roadless Area.
       Several environmental groups, including the Sierra Club, 
     the Wilderness Society, and Appellant Biodiversity 
     Conservation Alliance (BCA), objected strenuously to the 
     timber sale. The Beaver Park Roadless Area was one of the 
     last areas in the Black Hills National Forest still eligible 
     for designation as a wilderness, and logging activity would 
     likely disqualify it from being designated as such. The 
     environmental groups were also concerned about the effects 
     that the Veteran/Boulder timber sale would have on the 
     viability of the northern goshawk population in the Forest. 
     Accordingly, they brought administrative challenges to both 
     the particular project and the recently revised plan under 
     which it was approved.
       The groups met with mixed success in their administrative 
     challenges. Their challenge to the Veteran/Boulder sale was 
     initially denied in its entirety, though the sale was stayed 
     pending review of the Revised Plan itself. Then, on October 
     12, 1999, the Chief of the Forest Service upheld the 1997 
     Revised Plan in most respects, but found that there was 
     inadequate support in the record for the conclusion that the 
     Revised Plan's proposed changes would not threaten the 
     viability of several species, including the northern goshawk. 
     He therefore ordered further research into that question. In 
     the meanwhile, the Forest Service did not stop all pending 
     projects, but instead provided interim directions that would 
     apply until the identified defects in the Revised Plan were 
     remedied. As a result, when the stay on the sale expired, the 
     Forest Service went forward and put the timber out for bid.
       The Sierra Club, the Wilderness Society, and BCA brought 
     suit challenging the sale in federal district court, claiming 
     that the Forest Service could not rely on an ``illegal'' plan 
     to justify project-level decisions under that plan. 
     Specifically, they argued that the final environmental impact 
     statement's conclusion that the Veteran/Boulder sale would 
     not affect the viability of the northern goshawk was based on 
     the very findings in the 1997 Revised Plan that had been 
     disapproved.
       In the waning days of the Clinton Administration, in 
     September of 2000, the Forest Service signed a settlement 
     agreement with the plaintiff groups, under which it agreed 
     not to allow any tree cutting in the Beaver Park Roadless 
     Area, at least until the Service approved a new land and 
     resource management plan remedying the defects of the 1997 
     plan. The settlement was approved by the United States 
     District Court for the District of Colorado, which had 
     jurisdiction over the lawsuit because the relevant Forest 
     Service offices were in Colorado.
       The process of approving a new plan took much longer than 
     anticipated. The record does not reveal whether the mountain 
     pine beetles of western South Dakota were aware of the 
     settlement agreement or participated in the plan revision 
     process, but it is clear that they did not wait for 
     authorization from Washington before undertaking an expanded 
     program of forest resource exploitation. Just two years after 
     the initial Veteran/Boulder environmental impact statement, 
     the mountain pine beetle infestation in this section of the 
     Black Hills had reached epidemic proportions. According to 
     Forest Service estimates, the pine beetles killed 114,000 
     trees in 2002, as compared to only 15,000 in 1999. This 
     convinced forest managers that immediate harvesting of 
     deadwood and infested trees, which the settlement agreement 
     prohibited, was necessary to guard against further spread of 
     the infestation and potentially disastrous forest fires.
       Given that approval of a corrected resource management plan 
     was still a long way off, the Forest Service and the local 
     South Dakota interests that shared its concerns had a choice: 
     they could either attempt to obtain consent to the tree 
     cutting from the original parties to the agreement, or with 
     the help of South Dakota's congressional delegation, they 
     could attempt to overturn the settlement agreement's 
     prohibition by legislation. The Forest Service began by 
     trying the consensual approach. Perhaps spurred by the threat 
     of intervention from Congress, the signatories to the 
     settlement met with the Forest Service to discuss changing 
     the agreement in light of the mountain pine beetle problem. 
     The Forest Service reached agreement with the Sierra Club and 
     the Wilderness Society, but BCA and Brian Brademeyer, then 
     chair of the Black Hills Sierra Club, refused to agree to 
     proposed modifications in the settlement. Stymied, South 
     Dakota interests turned to Congress for a legislative 
     solution.
       For some years, Congress had been considering national 
     legislation that would streamline the process of obtaining 
     environmental approval of logging and other clearance 
     projects in fire- and disease-threatened national forests; 
     but these efforts were caught up in the debate over the role 
     of commercial logging in forest restoration. By limiting 
     legislative action to a narrow geographical area, however, 
     and with the acquiescence of some influential environmental 
     groups and the active support of the state's congressional 
     delegation, Congress was able to reach agreement on a bill 
     that would permit logging and other measures in the Beaver 
     Park Roadless Area. In a rider to an unrelated appropriations 
     bill, Congress enacted into law essentially the terms of the 
     modified agreement negotiated between the Forest Service and 
     the Sierra Club and the Wilderness Society. See Supplemental 
     Appropriations Act for Further Recovery From and Response to 
     Terrorist Acts on the United States, Pub. L. No. 107-206, 
     Sec. 706, 116 Stat. 820, 864 (2002) (the ``706 Rider'' or 
     ``Rider''). The Rider, which was signed into law on August 2, 
     2002, required the Forest Service to take a variety of 
     actions that violated the settlement agreement, see, e.g., 
     id. Sec. 706(d)(5), 116 Stat. at 867, and prohibited judicial 
     review of those actions, id. Sec. 706(j), 116 Stat. at 868. 
     It also specifically referred to the settlement agreement, 
     and stated that the agreement should continue in effect to 
     the extent it was not preempted by the Rider. See id., 116 
     Stat. at 869.
       After the Rider was passed, BCA and Mr. Brademeyer 
     (hereinafter referred to, jointly, as ``BCA'') went to the 
     federal district court in Colorado to obtain an order 
     requiring continued enforcement of the settlement agreement, 
     claiming that the 706 Rider unconstitutionally trenched on 
     both the executive and judicial branches. The district court 
     denied the motion, and BCA appealed.


                               DISCUSSION

       As a preliminary matter, we must determine the scope of 
     this Court's jurisdiction over this case. Although we would 
     normally have jurisdiction under 28 U.S.C. Sec. 1291, the 706 
     Rider limits that jurisdiction:
       ``Due to the extraordinary circumstances present here, 
     actions authorized by this section shall proceed immediately 
     and to completion notwithstanding any other provision of law 
     including, but not limited to, NEPA and the National Forest 
     Management Act (16 U.S.C. 1601 et seq.). Such actions shall 
     not be subject to the notice, comment, and appeal 
     requirements of the Appeals Reform Act, (16 U.S.C. 1612 
     (note), Pub. Law No. 102-381 sec. 322). Any action authorized 
     by this section shall not be subject to judicial review by 
     any court of the United States.''
       Rider 706(j), 116 Stat. at 868 (emphasis added). At oral 
     argument, BCA contended that the italicized language does not 
     preclude us from considering the constitutionality of the 
     Rider itself. The government disagrees, arguing that we have 
     jurisdiction at most to determine whether the denial of 
     jurisdiction, not the entire Rider, is constitutional.
       In determining the extent of our jurisdiction, we must 
     start with the precise language of the Rider, keeping in mind 
     that such limitations of jurisdiction are to be construed 
     narrowly to avoid constitutional problems. See Johnson v. 
     Robison, 415 U.S. 361, 366-67, 39 L. Ed. 2d 389, 94 S. Ct. 
     1160 (1974). What is prohibited here is judicial review of 
     ``any action authorized by'' the Rider. Rider Sec. 706(j), 
     116 Stat. at 868. BCA, however, does not seem to be seeking 
     judicial review of any specific actions already taken or soon 
     to be taken by the Forest Service. Rather, it has moved for 
     enforcement of the settlement agreement in the face of the 
     new Congressional legislation. Admittedly, the basis for the 
     lawsuit, and the alleged injury that gives BCA standing, is 
     the prospect of Forest Service action pursuant to the Rider 
     and in violation of the settlement agreement. Yet at this 
     point, no pastor prospective actions of the Forest Service 
     are directly at issue. The question before us is simply 
     whether the settlement agreement has continuing validity in 
     the face of Congress's intervening act.
       The situation here is thus different from one in which the 
     court is asked to hold a party who has violated an injunction 
     in contempt. In such a case, the ``actions'' taken by a party 
     to the injunction are directly at issue. BCA's motion is more 
     analogous to a suit for declaratory judgment holding the 
     Rider itself to be unconstitutional. Because BCA seeks 
     judicial review of the congressional act mandating that the 
     settlement agreement be violated, rather than judicial review 
     of the Forest Service's acts authorized by the Rider, the 
     jurisdictional bar does not apply. See Nat'l Coalition to 
     Save Our Mall v. Norton, 348 U.S. App. D.C. 92, 269 F.3d 
     1092, 1095 (D.C. Cir. 2001). We therefore must reach the 
     question of whether the Rider is constitutional. Because 
     this question is purely legal, our review is de novo. See 
     United States v. Pompey, 264 F.3d 1176, 1179 (10th Cir. 
     2001).
       BCA's chief argument is that the Rider trenches on the 
     Executive by giving the Forest Service marching orders so 
     detailed that

[[Page H6597]]

     they go beyond merely ``passing new legislation'' to 
     interpreting the law, which is ``the very essence of 
     `execution' of the law.'' Bowsher v. Synar, 478 U.S. 714, 
     733, 92 L. Ed. 2d 583, 106 S. Ct. 3181 (1986). However, they 
     never clearly explain what, in their view, separates 
     permissible legislation from impermissible interpretation. 
     The main flaw they find in the Rider is its extreme 
     particularity, making it seem as if their theory is that 
     extreme particularity by itself infringes the Executive's 
     power to enforce and execute the law. At times, though, they 
     make a more limited claim: that while specificity is not per 
     se unconstitutional, at least in this case it is 
     ``indicative'' of the fact that Congress has 
     unconstitutionally ``directed how law is to be implemented,'' 
     rather than (constitutionally) changing the applicable law. 
     Appellants' Reply Br. 5. This more limited claim suggests 
     that it is particularity in combination with some other 
     feature that raises the constitutional problem. We consider 
     each theory in turn.
       BCA bases its argument on a handful of cases in which the 
     Supreme Court has held that the legislative branch cannot 
     play a role in the interpretation and execution of the law. 
     See, e.g., Metro. Washington Airports Auth. v. Citizens for 
     the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 271-72, 
     115 L. Ed. 2d 236, 111 S. Ct. 2298 (1991); Bowsher, 478 U.S. 
     at 725-26; INS v. Chadha, 462 U.S. 919, 951-52, 77 L. Ed. 2d 
     317, 103 S. Ct. 2764 (1983); Springer v. Philippine Islands, 
     277 U.S. 189, 201-02, 72 L. Ed. 845, 48 S. Ct. 480 (1928). 
     There is no basis, however, for BCA's assertion that the 
     sheer specificity of the 706 Rider takes it beyond the realm 
     of Congress's legislative powers. Certainly the cases cited 
     above do not support this position. In each of those cases, 
     Congress sought a role for itself in the execution of the 
     laws, beyond enactment of legislation, through mechanisms 
     such as a one-house legislative veto or the vesting of law-
     executing powers in officers appointed by, or accountable to, 
     Congress. In Bowsher, the Court held that the Comptroller 
     General, who serves at the pleasure of Congress, could not be 
     the officer who determined what spending cuts would be made 
     in order to reduce the deficit under the Gramm-Rudman-
     Hollings Act of 1985. 478 U.S. at 717-18, 736. Springer held 
     that it violated separation of powers for members of the 
     legislative branch to be directors of government-owned 
     businesses. 277 U.S. at 202-03. Similarly, Metropolitan 
     Washington Airports struck down an arrangement whereby a 
     board of review composed of members of Congress had authority 
     to veto key acts of the Metropolitan Washington Airport 
     Authority. 501 U.S. at 275-77. Chadha struck down a law that 
     delegated authority to the Attorney General to suspend 
     certain deportations, but allowed either house of Congress 
     acting alone to veto the Attorney General's decisions. 462 
     U.S. at 923, 944-59. None of these cases, or any others of 
     which we are aware, suggest that Congress is required to 
     speak with some minimum degree of generality, so as to leave 
     play for the Executive to exercise discretion in interpreting 
     the law. Rather, the Constitution expressly leaves it up to 
     Congress to determine how specific it may deem it ``necessary 
     and proper'' for the laws to be. U.S. Const. art. I, Sec. 8, 
     cl. 18. The cases cited above have simply forbidden Congress, 
     or its members or servants, from exerting legal authority 
     without observing the formalities for the passage of 
     legislation under the Constitution: ``bicameral passage 
     followed by presentment to the President.'' Bowsher, 478 U.S. 
     at 726 (quoting Chadha, 462 U.S. at 954-55). This is a 
     structural and institutional means of guaranteeing that 
     Congress stays within the bounds of legislating, and is far 
     superior to asking courts to police the shades of gray 
     between the poles of general and specific.
       To be sure, the Constitution imposes certain specific 
     constraints on the power of Congress to legislate with 
     overmuch particularity. The Bill of Attainder Clause, U.S. 
     Const. art. I, Sec. 9, cl. 3, and the ``uniform Duties, 
     Imposts, and Excises'' Clause, id., are examples. See Sec. 8, 
     cl. 1 Nixon v. Adm'r of Gen. Servs., 433 U.S. 425, 468-73, 53 
     L. Ed. 2d 867, 97 S. Ct. 2777 (1977); United States v. 
     Ptasynski, 462 U.S. 74, 80-85, 76 L. Ed. 2d 427, 103 S. Ct. 
     2239 (1983). Due process and equal protection principles 
     similarly prevent Congress from acting with respect to 
     specific persons or groups in some contexts, and specificity 
     may be relevant to determining whether Congress has trenched 
     on the Executive's ability to carry out its specifically 
     enumerated executive powers. Nixon, 433 U.S. at 443. But when 
     Congress is exercising its own powers with respect to matters 
     of public right, the executive role of ``taking Care that the 
     Laws be faithfully executed,'' U.S. Const. art. II, Sec. 3, 
     is entirely derivative of the laws passed by Congress, and 
     Congress may be as specific in its instructions to the 
     Executive as it wishes. Indeed, as the Supreme Court has 
     noted, Congress may even pass legislation governing ``a 
     legitimate class of one.'' Nixon, 433 U.S. at 472.
       In the instant case, none of the Constitution's explicit 
     restrictions on specificity apply. The Property Clause states 
     that ``Congress shall have Power to dispose of and make all 
     needful Rules and Regulations respecting the Territory or 
     other Property belonging to the United States.'' U.S. Const. 
     art. IV, Sec. 3, cl. 2. The Supreme Court has ``repeatedly 
     observed that the power over the public land thus entrusted 
     to Congress is without limitations.'' Kleppe v. New Mexico, 
     426 U.S. 529, 539, 49 L. Ed. 2d 34, 96 S. Ct. 2285 (1976) 
     (internal brackets and quotation marks omitted); see also 
     Wyoming v. United States, 279 F.3d 1214, 1227 (10th Cir. 
     2002). It would be difficult if not impossible to control the 
     use of federal lands without reference to specific actions 
     affecting specific tracts of land, and we see no reason why 
     Congress should be forced to avoid such directives. See Save 
     Our Mall, 269 F.3d at 1097 (noting that particularity is 
     especially unproblematic when addressing unique public 
     amenities). The Supreme Court's remark in Metropolitan 
     Washington Airports seems relevant here:
       ``Because National and Dulles are the property of the 
     Federal Government and their operations directly affect 
     interstate commerce, there is no doubt concerning the 
     ultimate power of Congress to enact legislation defining the 
     policies that govern those operations. Congress itself can 
     formulate the details, or it can enact general standards and 
     assign to the Executive Branch the responsibility for making 
     necessary managerial decisions in conformance with those 
     standards.''
     501 U.S. at 271-72 (emphasis added).
       Thus, BCA is mistaken when it argues that Congress has 
     arrogated power to itself at the expense of the executive 
     branch because it ``specifically ordered the Executive Branch 
     to carry out a duty which had been expressly delegated to the 
     Department of Agriculture, the management of the Black Hills 
     National Forest.'' Appellants' Br. 23. To give specific 
     orders by duly enacted legislation in an area where Congress 
     has previously delegated managerial authority is not an 
     unconstitutional encroachment on the prerogatives of the 
     Executive; it is merely to reclaim the formerly delegated 
     authority. Such delegations, which are accomplished by 
     statute, are always revocable in like manner; they cannot 
     extend the domain reserved by the Constitution to the 
     Executive alone. See Stop H-3 Ass'n v. Dole, 870 F.2d 1419, 
     1435 n.24 (9th Cir. 1989).
       We now turn to consider the view that although the 706 
     Rider's specificity is unobjectionable in the abstract, it is 
     still unconstitutional because it attempts to mandate 
     specific results without changing the underlying 
     environmental laws. BCA relies for this view chiefly on 
     Robertson v. Seattle Audubon Society, where the Supreme 
     Court upheld a similar provision because it ``compelled 
     changes in law, not findings or results under old law.'' 
     503 U.S. 429, 438, 118 L. Ed. 2d 73, 112 S. Ct. 1407 
     (1992); see also Apache Survival Coalition v. United 
     States, 21 F.3d 895, 904 (9th Cir. 1994); Stop H-3 Ass'n, 
     870 F.2d at 1434 (upholding a statute authorizing 
     construction of a highway despite an environmental 
     regulation because it ``does not interpret [the relevant 
     regulation's] requirements but rather exempts H-3 from 
     them''); Armuchee Alliance v. King, 922 F. Supp. 1541, 
     1550 (N.D. Ga. 1996).
       Far from supporting BCA's position, however, Seattle 
     Audubon rejects an argument very much like its own. The case 
     concerned logging litigation to which Congress responded by 
     passing the Northwest Timber Compromise of 1990, applicable 
     only to timber sales entered before September 30, 1990, in 
     thirteen national forests in the Pacific Northwest. The key 
     section of that legislation stated that ``Congress determines 
     and directs that management of areas according to [new rules 
     set forth in the Northwest Timber Compromise] . . . meets the 
     statutory requirements that are the basis for [the 
     litigation].'' 503 U.S. at 434-35. The Ninth Circuit, below, 
     had held that this did not ``establish new law, but directed 
     the court to reach a specific result and make certain factual 
     findings under existing law in connection with two cases 
     pending in federal court,'' thus encroaching on the judicial 
     branch under United States v. Klein, 80 U.S. (13 Wall.) 128, 
     20 L. Ed. 519, 7 Ct. C1. 240 (1872). Seattle Audubon Soc'y v. 
     Robertson, 914 F.2d 1311, 1316 (9th Cir. 1990) (Seattle 
     Audubon 1). In reversing, the Supreme Court criticized the 
     Ninth Circuit's focus on the form of the enactment; instead, 
     it looked to the legal effect of the Seattle Audubon 
     provision:
       ``We conclude that subsection (b)(6)(A) compelled changes 
     in law, not findings or results under old law. Before 
     subsection (b)(6)(A) was enacted, the original claims would 
     fail only if the challenged harvesting violated none of five 
     old provisions. Under subsection (b)(6) (A), by contrast, 
     those same claims would fail if the harvesting violated 
     neither of two new provisions. Its operation, we think, 
     modified the old provisions.''
     Seattle Audubon, 503 U.S. at 438.
       This case follows a fortiori from Seattle Audubon. Just as 
     in Seattle Audubon, the 706 Rider has the practical effect of 
     changing the scope of the government's legal duties. Before 
     the Rider, the Forest Service was prohibited by law from 
     cutting trees without meeting various requirements of various 
     environmental laws; after the Rider, it is required to cut 
     trees in the Black Hills ``notwithstanding'' those laws. 
     Rider 706(j), 116 Stat. at 868. But the 706 Rider lacks the 
     problematic language--``the Congress determines and directs 
     that management of areas according to [new rules set forth in 
     the Northwest Timber Compromise] . . . meets the statutory 
     requirements that are the basis for [the litigation]''--which 
     the Ninth Circuit construed as interpreting rather than 
     amending the law. Seattle Audubon I, 914 F.2d at 1316. By 
     contrast, the 706 Rider orders that certain actions be taken 
     ``notwithstanding'' the requirements of certain prior-enacted 
     laws, thus effectively replacing the old standards, in this 
     one case, with new ones. Similar statutes have been upheld as 
     constitutionally valid amendments of the underlying law. See 
     Save Our Mall, 269 F.3d at 1097; Apache Survival Coalition, 
     21 F.3d at 904; Stop H-3 Assn, 870 F.2d at 1434. Thus, we

[[Page H6598]]

     need not decide whether directing specific actions without 
     changing the law would be an unconstitutional attempt by 
     Congress to usurp the Executive's role in interpreting the 
     law. In accordance with the counsel in Bowsher, Congress has 
     influenced the execution of the law here only ``indirectly--
     by passing new legislation.'' 478 U.S. at 734 (citing Chadha, 
     462 U.S. at 958).
       Next, BCA claims that the 706 Rider encroaches on the 
     Judiciary, in three ways: (1) by disturbing final 
     dispositions of cases in violation of Plaut v. Spendthrift 
     Farm, Inc., 514 U.S. 211, 131 L. Ed. 2d 328, 115 S. Ct. 1447 
     (1995); (2) by prescribing rules of decision to the Judiciary 
     in pending cases, in violation of United States v. Klein, 80 
     U.S. (13 Wall.) 128, 20 L. Ed. 519, 7 Ct. C1. 240 (1871); and 
     (3) by vesting review of judicial decisions in the executive 
     branch, in violation of the rule in Hayburn's Case, 2 U.S. (2 
     Dall.) 409, 1 L. Ed 436 (1792). We reject all three claims.
       BCA's first contention, that the 706 Rider impermissibly 
     sets aside a final judicial disposition, depends on a crucial 
     but questionable premise: that the settlement agreement is 
     actually a judicial disposition rather than a mere private 
     agreement between the parties. Although the district court 
     did incorporate the settlement agreement by reference in its 
     order dismissing the suit, it nevertheless preferred the 
     latter characterization in addressing BCA's current request 
     for injunctive relief:
       ``This case doesn't even rise to the level where the Court 
     executed a consent decree. This is a case where the parties 
     sat down among themselves and settled the case. The more 
     proper analogy here is to an executory settlement contract. 
     It is true that the Court approved the settlement agreement, 
     but that is different from a consent decree.
       . . .
       . . . As far as I'm concerned, the Court's approval of the 
     settlement agreement is entitled to very, very little weight, 
     because it was negotiated among the parties.''
       Tr. of Mot. Hr'g dated Dec. 26, 2002, at 12, App. 405. 
     Nevertheless, because the settlement agreement was a judicial 
     disposition in form if not in substance, we assume for 
     purposes of this appeal that it is entitled to the same 
     constitutional protection that it would have if the court had 
     decided its terms.
       Within the scope of its enumerated powers, Congress has 
     authority to enact laws to govern matters of public right, 
     such as the management of the public lands, and authority to 
     change those laws. Even when the Judiciary has issued a legal 
     judgment enforcing a congressional act--for example, by a 
     writ of injunction--it is no violation of the judicial 
     power for Congress to change the terms of the underlying 
     substantive law. The purpose of an injunction is to define 
     and enforce legal obligations, not to freeze them into 
     place. Thus, when Congress changes the laws, it is those 
     amended laws--not the terms of past injunctions--that must 
     be given prospective legal effect. See, e.g., Miller v. 
     French, 530 U.S. 327, 347-50, 147 L. Ed. 2d 326, 120 S. 
     Ct. 2246 (2000); Hall v. Beals, 396 U.S. 45, 48, 24 L. Ed. 
     2d 214, 90 S. Ct. 200 (1969); System Fed'n No. 91 v. 
     Wright, 364 U.S. 642, 648-650, 5 L. Ed. 2d 349, 81 S. Ct. 
     368 (1961); Am. Steel Foundries v. Tri-City Cent. Trades 
     Council, 257 U.S. 184, 201-07, 66 L. Ed. 189, 42 S. Ct. 72 
     (1921).
       The Supreme Court applied this principle to dispose of a 
     contention very similar to BCA's as long ago as 1855, in the 
     venerable case of Pennsylvania v. Wheeling & Belmont Bridge 
     Co., 59 U.S. (18 How.) 421, 15 L. Ed. 435 (1855). In that 
     case, Pennsylvania had previously brought suit to enjoin the 
     construction of a bridge over the Ohio River, which would 
     obstruct access to Pennsylvania's ports. The Supreme Court 
     eventually granted an injunction requiring the bridge to be 
     removed or raised. It reasoned that because Congress had 
     ``regulated the navigation of the Ohio River, and had thereby 
     secured to the public, by virtue of its authority, the free 
     and unobstructed use of the same,'' the Virginia-authorized 
     bridge impeding travel on the Ohio River was ``in conflict 
     with the acts of congress, which were the paramount law.'' 59 
     U. S. (18 How.) at 430 (summarizing the earlier opinion).
       Thereafter, Congress passed a new law authorizing the 
     construction of the bridge and stating that the bridge and 
     one other were ``lawful structures in their present positions 
     and elevations.'' Wheeling Bridge, 59 U.S. (18 How.) at 429. 
     Pennsylvania sued again, claiming that the intervening 
     enactment was an unconstitutional attempt to overturn a final 
     decision of the Judiciary. The Supreme Court disagreed:
       ``If the remedy in this case had been an action at law, and 
     a judgment rendered in favor of the plaintiff for damages, 
     the right to these would have passed beyond the reach of the 
     power of congress. It would have depended, not upon the 
     public right of the free navigation of the river, but upon 
     the judgment of the court. . . . But that part of the decree, 
     directing the abatement of the obstruction, is executory, a 
     continuing decree, which requires not only the removal of the 
     bridge, but enjoins the defendants against any reconstruction 
     or continuance. Now, whether it is a future existing or 
     continuing obstruction depends upon the question whether or 
     not it interferes with the right of navigation. If, in the 
     meantime, since the decree, this right has been modified by 
     the competent authority, so that the bridge is no longer an 
     unlawful obstruction, it is quite plain the decree of the 
     court cannot be enforced. There is no longer any interference 
     with the enjoyment of the public right inconsistent with the 
     law, no more than there would be where the plaintiff himself 
     had consented to it, after the rendition of the decree.''
     Id. at 431-32. Central to the Court's analysis was the fact 
     that the right to unobstructed waterways was a ``public right 
     . . . under the regulation of congress.'' Id. at 431. In 
     other words, the plaintiff had no vested property right in an 
     unobstructed waterway. The core violation was against 
     Congress's right to control the waterways, and Pennsylvania's 
     right to an unobstructed waterway was only the derivative 
     right to enjoy whatever degree of navigation Congress saw fit 
     to allow. So long as the will of Congress was to leave the 
     river unimpeded, any impediment was a violation of the public 
     right thus defined. But once Congress changed its mind, the 
     contours of that right changed, and there was no more ground 
     for injunctive relief. If a landowner grants her neighbor a 
     revocable license to use a private road across her property, 
     the neighbor could conceivably obtain an injunction against 
     any third party who prevents him from using that road. 
     However, that does not affect the right of the landowner to 
     revoke the license at any time. Should the license be 
     revoked, the neighbor's right to use the private road ceases, 
     and enforcing the injunction is no longer appropriate.
       Wheeling Bridge has remained a fixed star in the Supreme 
     Court's separation-of-powers jurisprudence, and numerous 
     subsequent cases have relied on it. See, e.g., The Clinton 
     Bridge, 77 U.S. 454, 463, 19 L. Ed. 969 (1870) (concluding, 
     on the basis of Wheeling Bridge, that in public rights cases, 
     Congress could not only modify injunctive relief already 
     granted, but also could ``give the rule of decision'' in 
     pending cases); Hodges v. Snyder, 261 U.S. 600, 603, 67 L. 
     Ed. 819, 43 S. Ct. 435 (1923) (noting that the normal rule 
     against disturbing final judgments ``does not apply to a suit 
     brought for the enforcement of a public right, which, even 
     after it has been established by the judgment of the court, 
     may be annulled by subsequent legislation and should not be 
     thereafter enforced''); Sys. Fed'n No. 91, 364 U.S. at 648-
     650 (holding that it is an abuse of discretion for a district 
     court not to modify an injunction to reflect changes in 
     underlying law); Miller v. French, 530 U.S. at 347-48.
       Even Plaut v. Spendthrift Farms, Inc., the principal case 
     on which BCA relies, is careful not to disturb the holding of 
     Wheeling Bridge. There the Supreme Court had previously 
     imputed a uniform nationwide statute of limitations on 
     actions brought under Sec. 10(b) of the Securities Exchange 
     Act of 1934, Lampf, Pleva, Lipkind, Prupis & Petigrow v. 
     Gilbertson, 501 U.S. 350, 115 L. Ed. 2d 321, 111 S. Ct. 2773 
     (1991), and held that the newly established statute of 
     limitations applied to all pending cases in the federal 
     courts. James B. Beam Distilling Co. v. Georgia, 501 U. S. 
     529, 115 L. Ed. 2d 481, 111 S. Ct. 2439 (1991). Six months 
     later, Congress passed a law changing the statute of 
     limitations for those cases commenced before Lampf to what it 
     would have been had the Supreme Court not imposed a uniform 
     nationwide limitations period, and reinstating all actions 
     dismissed as time-barred if they would have been timely under 
     the limitations period of their local jurisdiction. See 
     Federal Deposit Insurance Corporation Act of 1991, Pub. L. 
     No. 102-242, sec. 476, Sec. 27A, 105 Stat. 2236 (codified at 
     15 U.S.C. Sec. 78aa-1 (1988 Supp. V)). The Supreme Court held 
     that this action violated the separation of powers by 
     requiring federal courts to reopen final judgments. Plaut, 
     514 U.S. at 240. It reasoned that once the judicial branch 
     has given its final word on a case, to allow Congress to 
     reopen the case by legislation would destroy the power of the 
     Judiciary to render final judgments. Id. at 219. Instead, 
     Congress would be in effect a court of last resort to which 
     one could appeal any ``final'' decision of the Judiciary.
       In rejecting such an outcome, the Court in Plaut did no 
     more than follow the dicta of Wheeling Bridge itself:
       ``But it is urged, that the act of congress cannot have the 
     effect and operation to annul the judgment of the court 
     already rendered, or the rights determined thereby in favor 
     of the plaintiff. This, as a general proposition, is 
     certainly not to be denied, especially as it respects 
     adjudication upon the private rights of the parties. When 
     they have passed into judgment the right becomes absolute, 
     and it is the duty of the court to enforce it.
       . . .
       Now, we agree, if the remedy in this case had been an 
     action at law, and a judgment rendered in favor of the 
     Plaintiff for damages, the right to these would have passed 
     beyond the reach of the power of congress.''
     Wheeling Bridge, 59 U.S. (18 How.) at 431 (emphasis added), 
     quoted in Plaut, 514 U.S. at 226. As Plaut itself insists, it 
     does not call the holding of Wheeling Bridge into question at 
     all. 514 U.S. at 232. The disturbed court decision in Plaut 
     definitively resolved a private claim to a certain amount of 
     money, leaving the defendants with an unconditional right to 
     the sum in question; the judgments in this case and in 
     Wheeling Bridge merely prohibited future interference with 
     the enjoyment of a public right that remained revocable at 
     Congress's pleasure. The Supreme Court has since reaffirmed 
     the continued vitality of Wheeling Bridge in Miller v. 
     French. In that case, the Prison Litigation Reform Act had 
     set new limits on the power of courts to give injunctive 
     relief to prisoners, requiring (among other things) that

[[Page H6599]]

     any injunctive relief granted be both narrowly drawn to 
     correct the violation of federal rights and also the least 
     intrusive means of correcting the violation. 18 U.S.C. 
     3626(a)(1)(A). The provision at issue in Miller directed that 
     an action to modify or terminate injunctive relief pursuant 
     to the PLRA would act as an automatic stay of any existing 
     injunctive relief if a court did not find that the injunctive 
     relief remained appropriate under the new standards within 30 
     days. Id. 3626(b)(2).
       In upholding the PLRA's automatic stay, the Supreme Court 
     found Wheeling Bridge controlling, distinguishing Plaut 
     because in that case Congress had disturbed final judgments 
     in actions for money damages. Miller, 530 U.S. at 344-45. The 
     Court held that when courts grant prospective injunctive 
     relief, they remain obligated to modify that relief to the 
     extent that ``subsequent changes in the law'' render it 
     illegal. Id. at 347.
       This case falls squarely within the principle of Wheeling 
     Bridge. BCA's members' rights with respect to the national 
     forests is a ``public right . . . under the regulation of 
     congress,'' Wheeling Bridge, 59 U.S. (18 How.) at 431, in 
     exactly the same way that the right to unimpeded navigation 
     of the Ohio River was. Both rights are entirely contingent on 
     Congress's continuing will that the federal lands or 
     interstate waterways be managed in a particular way. The 
     settlement agreement in the Veteran/Boulder matter in no way 
     touched on vested private rights. To be sure, the private 
     interests of BCA's members are sufficiently affected to give 
     rise to standing, but the interest they represented in their 
     lawsuit was nothing other than the interest of the public in 
     seeing that Congress's environmental directives are observed 
     by the Forest Service.
       BCA's attempts to distinguish Miller and Wheeling Bridge 
     are unavailing. It argues, first, that in those cases, 
     Congress simply changed the law, leaving it for the courts to 
     decide whether to modify their injunctions, whereas here 
     Congress is directly requiring the courts to modify the 
     settlement agreement. We see no such distinction. In those 
     cases, as here, Congress enacted rules in direct conflict 
     with existing legal obligations. In those cases, as here, 
     courts later had to decide whether those previous legal 
     obligations remained enforceable in light of Congress's act.
       Second, BCA argues that the 706 Rider specifically refers 
     to a particular settlement agreement it means to supercede, 
     whereas the PLRA provision in Miller ``did not speak directly 
     to any pre-existing judicial ruling or issuance of relief.'' 
     Appellants' Br. 27. The same was true in Wheeling Bridge. 
     There, legislation was targeted at two named bridges, one of 
     which was the subject of the injunction in the case. See 59 
     U.S. (18 How.) at 429. It is true that in Seattle Audubon, 
     the Court declined to address the question of whether such 
     targeting raised a constitutional problem. 503 U.S. at 441. 
     However, its silence ended four years later in Plaut. There, 
     a concurrence found a constitutional violation precisely 
     because the reopening of dismissed cases ``applied only to a 
     few individual instances.'' 514 U.S. at 243 (Breyer, J., 
     concurring). A majority of the Court rejected that position, 
     describing it as ``wrong in law.'' Id. at 238. The majority 
     concluded that the infringement of the judicial power 
     consisted ``not of the Legislature's acting in a 
     particularized and thus (according to the concurrence) 
     nonlegislative fashion; but rather of the Legislature's 
     nullifying prior, authoritative judicial action. It makes no 
     difference whatever to that separation-of-powers violation 
     that it is in gross rather than particularized.'' Id. at 239 
     (emphasis in original; footnote omitted); see also id. at 239 
     n.9 (``While legislatures usually act through laws of general 
     applicability, that is by no means their only legitimate mode 
     of operation.'').
       To avoid constant interbranch friction, the lines 
     separating the branches should be clear. As the Supreme Court 
     noted in Plaut, and as BCA's arguments illustrate, it only 
     ``prolongs doubt and multiplies confrontation'' to make the 
     constitutional analysis hinge on the murky distinction 
     between generalized lawmaking and particularized application 
     of the law. 514 U.S. at 240.
       It is true that the injunction BCA seeks to enforce differs 
     from the one in Wheeling Bridge in that it is the product of 
     a settlement agreement rather than a product of a judicial 
     declaration of right. Thus, Appellants' claimed right to keep 
     Beaver Park unmolested might be said to rest directly on the 
     terms of their contractual agreement, and only indirectly on 
     public rights provided by the environmental laws. We must 
     therefore consider whether the settlement agreement has 
     interposed a new set of contractual rights that adequately 
     support keeping the injunction in place, making changes to 
     the scope of the underlying public right irrelevant.
       A negative answer to that question has been clear since at 
     least 1961, when the Supreme Court decided System Federation 
     No. 91 v. Wright, 364 U.S. 642, 648-650, 5 L. Ed. 2d 349, 81 
     S. Ct. 368 (1961). In that case, several nonunion railway 
     employees brought a class action against the railroad and 
     various unions for discrimination against them and other 
     nonunion workers. The district court eventually entered a 
     consent decree enjoining the defendants ``from discriminating 
     against the plaintiffs and the classes represented by them in 
     this action by reason of or on account of the refusal of said 
     employees to join or retain their membership in any of 
     defendant labor organizations, or any labor organization.'' 
     System Fed'n No. 91, 364 U.S. at 644. At the time, labor law 
     did not allow collective bargaining agreements to require 
     union shops. 364 U.S. at 645-46.
       Later, when the applicable law had changed to allow such 
     contracts, the unions sought modification of the decree to 
     make it clear that it would not prevent them from bargaining 
     for a union shop. Id. The district court refused to modify 
     the injunction; since nothing in the amended law made it 
     illegal for parties to agree not to have a union shop, the 
     court concluded that the parties were stuck with their 
     agreement. Id.
       The Sixth Circuit affirmed, but the Supreme Court reversed, 
     holding that the district court's refusal to modify the 
     decree was an abuse of discretion. 364 U.S. at 646, 650-53. 
     The Court reasoned that, under Wheeling Bridge, the district 
     court would have had to modify the decree if it had been the 
     result of litigation instead of consent. 364 U.S. at 650-51. 
     It then concluded that the same principles applied to consent 
     decrees:
       ``The result is all one whether the decree has been entered 
     after litigation or by consent. . . . In either event, a 
     court does not abdicate its power to revoke or modify its 
     mandate, if satisfied that what it has been doing has been 
     turned through changing circumstances into an instrument of 
     wrong. We reject the argument . . . that a decree entered 
     upon consent is to be treated as a contract and not as a 
     judicial act. . . .'' 364 U.S. at 650-51 (quoting United 
     States v. Swift & Co., 286 U.S. 106, 114-15, 76 L. Ed. 
     999, 52 S. Ct. 460 (1932) (Cardozo, J.)) (some ellipses in 
     original). The Court's reasons are also applicable here:
       ``The parties cannot, by giving each other consideration, 
     purchase from a court of equity a continuing injunction. In a 
     case like this the District Court's authority to adopt a 
     consent decree comes only from the statute which the decree 
     is intended to enforce. Frequently of course the terms 
     arrived at by the parties are accepted without change by the 
     adopting court. But just as the adopting court is free to 
     reject agreed-upon terms as not in furtherance of statutory 
     objectives, so must it be free to modify the terms of a 
     consent decree when a change in law brings those terms in 
     conflict with statutory objectives. In short, it was the 
     Railway Labor Act, and only incidentally the parties, that 
     the District Court served in entering the consent decree now 
     before us. The court must be free to continue to further the 
     objectives of that Act when its provisions are amended. The 
     parties have no power to require of the court continuing 
     enforcement of rights the statute no longer gives.''
     364 U.S. at 651. Put briefly, a settlement agreement or 
     consent decree designed to enforce statutory directives is 
     not merely a private contract. It implicates the courts, and 
     it is the statute--and ``only incidentally the parties''--to 
     which the courts owe their allegiance. The primary function 
     of a settlement agreement or consent decree, like that of a 
     litigated judgment, is to enforce the congressional will as 
     reflected in the statute. The court should modify or refuse 
     to enforce a settlement agreement or proposed decree unless 
     it is ``in furtherance of statutory objectives.'' The 
     agreement or consent decree is contractual only to the extent 
     that it represents an agreement by the parties regarding the 
     most efficient means of effectuating their rights under the 
     statute. It does not freeze the provisions of the statute 
     into place. If the statute changes, the parties' rights 
     change, and enforcement of their agreement must also change. 
     Any other conclusion would allow the parties, by exchange of 
     consideration, to bind not only themselves but Congress and 
     the courts as well.
       This principle applies even more clearly here than it did 
     in System Federation itself. There, the original injunction 
     was not inconsistent with the new law; it merely ruled out an 
     option that Congress had since made permissible but not 
     mandatory. If that injunction had to change, then a fortiori 
     the injunction at issue here, which is inconsistent with the 
     706 Rider, must give way.
       Having disposed of the claim that the 706 Rider disturbs 
     the district court's final judgment in violation of Plaut, we 
     turn to BCA's somewhat inconsistent claim that the Rider 
     violates United States v. Klein because it dictates ``rules 
     of decision'' to the district court in a pending case.
       Klein involved one episode in a series of conflicts between 
     the Reconstruction Congress and the balking President Andrew 
     Johnson. Various presidential proclamations had offered a 
     ``full pardon, with restoration of all rights of property,'' 
     to certain broad classes, conditioned on taking an oath of 
     loyalty. Klein, 80 U.S. (13 Wall.) at 139-40. In the 
     Abandoned and Captured Property Act, 12 Stat. 820 (Mar. 12, 
     1863), however, Congress provided that the owner of seized 
     property could sue in the Court of Claims to recover its 
     proceeds only on proof that the owner ``had never given aid 
     or comfort to the rebellion.'' 80 U.S. at 138-39. In United 
     States v. Padelford, 76 U.S. (9 Wall.) 531, 542-43, 19 L. Ed. 
     788, 7 Ct. C1. 144 (1869) (mem.), the Supreme Court held that 
     a presidential pardon renders the pardoned ``as innocent as 
     if he had never committed the offense,'' and concluded that 
     proof of pardon was equivalent to proof that the claimant had 
     not aided the rebellion. Congress responded to Padelford by 
     passing an appropriations proviso directing the Court of 
     Claims to take the fact of a pardon, with some narrow 
     exceptions, as conclusive proof that the claimant had ``given 
     aid or comfort to the rebellion,'' and

[[Page H6600]]

     as grounds for dismissing the claimant's suit. Klein, 80 U.S. 
     (13 Wall.) at 142-43. The proviso also removed the Supreme 
     Court's authority to hear appeals of such suits. 80 U.S. at 
     144-45. In Klein, the administrator of the estate of V.F. 
     Wilson, who had taken the oath and qualified for the pardon, 
     sued to recover the proceeds of Wilson's seized property. Id. 
     at 136, 143. The Supreme Court found the proviso to be 
     unconstitutional, both because it attempted to impair the 
     effect of a presidential pardon and because it ``prescribed 
     rules of decision to the Judicial Department of the 
     government in cases pending before it.'' Id. at 146.
       Klein is a notoriously difficult decision to interpret. 
     Read broadly, the ``rules of decision'' language of Klein 
     would seem to contradict the well-established principle that 
     courts must decide cases according to statutes enacted by 
     Congress. See United States v. Schooner Peggy, 5 U.S. (1 
     Cranch) 103, 109, 2 L. Ed. 49 (1801); Miller, 530 U.S. at 
     344, 346-47.
       In any event, the 706 Rider is very different from the 
     unusual legislation found unconstitutional in Klein. Central 
     to the Court's analysis in Klein was its conclusion that the 
     government's seizure of the private property at issue did not 
     divest its owner of his property rights. See Klein, 80 U.S. 
     (13 Wall.) at 136-39. Thus, the basis of the Klein suit (at 
     least in the eyes of the Klein court) was a private right to 
     property vindicated by a presidential pardon, which Congress 
     was therefore powerless to extinguish. See 80 U.S. at 148. 
     Since Congress could not manipulate these private rights, 
     Klein merely refused to allow Congress to accomplish 
     indirectly (by manipulating the judiciary's interpretation of 
     those private rights) what it could not accomplish directly.
       Thus understood, Klein is precisely in accord with Wheeling 
     Bridge, as Klein itself observes. See 80 U.S. (13 Wall.) at 
     146-47. When Congress does not control the substance of a 
     right, there are limits to its ability to influence the 
     judiciary's determination of that right, either by directing 
     the judiciary to decide a particular way, or by setting aside 
     judicial determinations after the fact. But when rights are 
     the creatures of Congress, as they were in Wheeling Bridge, 
     Congress is free to modify them at will, even though its 
     action may dictate results in pending cases and terminate 
     prospective relief in concluded ones. Thus, Klein's 
     prohibition on prescribing rules of decision in pending cases 
     has no application to public rights cases like this one.
       The Supreme Court explicitly made this point in The Clinton 
     Bridge, a case decided only one year before Klein. That case 
     addressed facts almost identical to those in Wheeling Bridge. 
     The only difference was that Congress passed legislation 
     authorizing the bridge in question while the suit over its 
     legality was still pending, not after the injunction issued. 
     See 77 U.S. (10 Wall.) at 462-63. The Court noted that, in so 
     doing, Congress ``gave the rule of decision for the court'' 
     in the pending case. 77 U.S. at 463. While it found that to 
     be unobjectionable under Wheeling Bridge, it warned that 
     ``very different considerations would have arisen'' if 
     Congress had attempted to dictate the rule of decision in a 
     case concerning a ``private right of action.'' Id. Klein must 
     be read as the fulfillment of that narrow warning, not the 
     enunciation of any broader principle.
       Furthermore, the Supreme Court has made it clear that Klein 
     does not apply to cases like this one: ``Whatever the precise 
     scope of Klein, . . . its prohibition does not take hold when 
     Congress amends applicable law.'' Plaut, 514 U.S. at 218, 
     quoted in Miller, 530 U.S. at 349 (internal quotation marks 
     and brackets omitted). Because, as we explained in Part II of 
     this opinion, the 706 Rider did ``amend[] applicable law,'' 
     the Klein principle does not apply here.
       Last, BCA claims that the 706 Rider violates the rule in 
     Hayburn's Case. Hayburn's Case has come to stand ``for the 
     principle that Congress cannot vest review of the decisions 
     of Article III courts in officials of the Executive Branch.'' 
     Plaut, 514 U.S. at 218. BCA admits that the 706 Rider does 
     not literally authorize Forest Service officials to review 
     judicial determinations. Nevertheless, it maintains that the 
     706 Rider orders the Executive to ignore and violate judicial 
     orders, and that this is close enough to make out a claim 
     under Hayburn's Case. We disagree. As discussed above, it is 
     well-established that new law can modify old injunctive 
     decrees. Whenever that happens, the new law at least 
     implicitly orders the Executive to ignore the old decrees.
       BCA maintains that in such circumstances, Congress's act 
     cannot constitutionally modify an injunction directly. 
     Instead, it claims, any modification must be made by the 
     court itself (though the court may be obliged to do it), and 
     until the court does so, the injunction remains in force. 
     Thus, because the 706 Rider directs the Forest Service to 
     proceed with its tree-cutting activities regardless of 
     whether the court modifies the settlement agreement, it 
     unconstitutionally directs the Executive to ignore an 
     injunction in force. But this is not the lesson of our cases. 
     Wheeling Bridge held, not merely that Congress's legislation 
     made modification of the injunction necessary, but that it 
     rendered the injunction unenforceable. 59 U.S. (18 How.) at 
     432; Miller, 530 U.S. at 346. Similarly, the provision upheld 
     in Miller v. French went beyond ordering judges to stay 
     prospective relief after 30 days; instead, it stated that a 
     motion to terminate injunctive relief ``shall operate as a 
     stay'' of that relief beginning 30 days after the motion--
     thus staying the injunctive relief without any action by the 
     court. Miller, 530 U.S. at 331. When Congress is acting 
     within the boundaries set by Wheeling Bridge and Miller, the 
     parties to a modified injunction need not wait upon the court 
     to ratify the congressional change. Thus, we see no violation 
     of Hayburn's Case or any other constitutional principle here.
       Viewed realistically, the 706 Rider intrudes on neither 
     executive nor judicial authority. The Rider comports with the 
     current view of executive branch officials regarding 
     management of the national forest. And while the Rider 
     overrides a settlement agreement entered by the district 
     court, that agreement was in fact a private agreement between 
     the parties, in which the Judiciary had little or no 
     independent involvement. To overturn the Rider would thus 
     serve not to vindicate the constitutionally entrusted 
     prerogatives of those two branches, but rather to keep in 
     place a private group's own preferences about forest 
     preservation policy in the face of contrary judgments by the 
     Executive and Congress. True principles of separation of 
     powers prevent settlement agreements negotiated by private 
     parties and officials of the executive branch from 
     encroaching either on the constitutionally vested authority 
     of Congress or on the statutorily vested authority of those 
     officials' successors in office. BCA's claim amounts to the 
     argument that an agreement forged by a private group with a 
     former administration, without serious judicial involvement, 
     can strip both Congress and the Executive of their 
     discretionary powers. The Constitution neither compels nor 
     permits such a result.
       The executive branch does not have authority to contract 
     away the enumerated constitutional powers of Congress or its 
     own successors, and certainly neither does a private group. 
     Accordingly, the governance of the Black Hills National 
     Forest must be conducted according to the new rules set by 
     Congress, as Article IV of the Constitution provides.
       For the foregoing reasons, the district court's denial of 
     BCA's motion is affirmed.
       The Hostettler bill truly is a revolutionary assault on our 
     Bill of Rights. If Congress, for the first time in our 
     history, is able to prevent citizens from having their rights 
     under the constitution heard in federal court, then the Bill 
     of Rights will be little more than a puff of smoke.
       Whatever you think of this legislation, or the Defense of 
     Marriage Act, Sen. Daschle's amendment is no precedent. The 
     Hostettler bill is truly unprecedented. For further 
     information, please visit the Committee website: (http://
www.house.gov/judiciary-democrats/
marriageprotectioninfo.html).
           Sincerely,
     John Conyers, Jr.,
       Ranking Member, Committee on the Judiciary.
     Jerrold Nadler,
       Ranking Member, Subcommittee on the Constitution.

  Mr. NADLER. Mr. Speaker, I place into the Record a memo from the 
Congressional Research Service that says that Congress has never passed 
any legislation that denies to the Federal courts the jurisdiction to 
adjudicate the constitutionality of an act of Congress.

                     Congressional Research Service

                               Memorandum

     To: House Committee on the Judiciary, Attention: Perry 
         Apelbaum.
     From: Johnny H. Killian, Senior Specialist, American 
         Constitutional Law, American Law Division.
     Subject: Precedent for Congressional Bill.

       This memorandum is in response to your query, respecting 
     H.R. 3313, now pending before the House of Representatives, 
     as to whether there is any precedent for enacted legislation 
     that would deny judicial review in any federal court of the 
     constitutionality of a law that Congress has enacted, whether 
     a law containing the jurisdictional provision or an earlier, 
     separate law. We are not aware of any precedent for a law 
     that would deny the inferior federal courts original 
     jurisdiction or the Supreme Court of appellate jurisdiction 
     to review the constitutionality of a law of Congress.

  Mr. NADLER. Mr. Speaker, I yield 1 minute to the distinguished 
gentleman from Oregon (Mr. Blumenauer).
  Mr. BLUMENAUER. It is my intention, Mr. Speaker, to elaborate on the 
point that was just made.
  I have been listening to the debate. I have not heard my colleagues 
here say that this is unconstitutional. The point is the legislation 
the gentleman cited, the World War II Memorial, the timber legislation, 
exempted from judicial review under the terms of the specific act. As 
in Campaign Finance Reform it did not preclude challenges against the 
constitutionality of the legislation in question. That is legitimate 
use of congressional legislative authority.
  What you are doing is not adjusting an act. You are saying we are not 
going to be able to deal with whether or not the laws in question are 
constitutional. That has never happened before.

[[Page H6601]]

  I heard the gentleman from Nebraska (Mr. Osborne) here a couple of 
moments ago talk about his lifetime of working with young people. I 
just left 50 young volunteers who are working in Washington, D.C. 
neighborhoods. As we were leaving, one of the young women said she woke 
up this morning listening to what we were going to be debating here 
today. It made no sense to her and asked, is there any argument that 
this is being done other than pure political motivation?
  This was, I thought, a very perceptive young woman. Her question, I 
think, answered itself, and I hope we are not to be guilty of 
undermining these young people's confidence in our activities.
  Mr. NADLER. Mr. Speaker, I yield 45 seconds to the distinguished 
gentleman from New York (Mr. Engel).
  Mr. ENGEL. Mr. Speaker, I thank the gentleman for yielding me time.
  I rise in opposition to this sham. What a shame it is when we have 41 
million Americans without health insurance, more than 2 million jobs 
lost, an additional $2 trillion in debt, that the leadership of this 
Congress chooses to try again to divert attention to a divisive issue. 
Having failed to even muster 50 votes in the other body to place in the 
Constitution language setting one group of Americans aside as second 
class citizens, this leadership now turns its attention to a full 
assault on the Constitution itself.
  If they cannot amend the Constitution, then attack the balance of 
power. I keep hearing that activist judges should not change State 
laws. Five activist judges denied all the voters of Florida the right 
to have their votes counted, but this bill is far more cynical.
  The other side knows it will be thrown out by the Supreme Court. That 
means they can keep this issue alive for years and years.
  Stop this assault. Vote no on H.R. 3313.
  Mr. NADLER. Mr. Speaker, I yield 1 minute to the distinguished 
gentleman from Texas (Mr. Green).
  Mr. GREEN of Texas. Mr. Speaker, I rise in opposition to H.R. 3313.
  While I believe the institution of marriage should consist of one man 
and one woman, and I voted for the 1996 Defense of Marriage Act, I 
cannot support this bill. The Defense of Marriage Act has to my 
knowledge not been challenged in the Federal court, and it seems like 
we are putting the cart before the horse. We should allow our system of 
checks and balances to work like our Founding Fathers designed it.
  Whatever Massachusetts, Vermont and Hawaii does regarding their 
marriage license does not change how Texas law does marriages.
  In Texas we already have a law that states the institution of 
marriage is one man, one woman. We also have a law that states that 
Texas does not have to recognize marriages that are performed outside 
the State of Texas. The Defense of Marriage Act supports our State law. 
Marriage is a State issue and not a Federal issue. We do not seek 
marriage licenses in the Federal courthouses.
  What this bill is about is continued efforts of this administration 
and Republicans in Congress to divide our country when we really need 
unity.
  Just today we heard that while our troops are fighting for our 
country, they are short $12 billion in funding, even with all the 
supplementals we voted for. Maybe this administration, the Republicans, 
need to spend more time explaining why our troops waited months for 
body armor and armor for their Humvees and we are still $12 billion 
short.
  Let us spend time protecting our country and not worry about ``my'' 
34 years of marriage. And once again, this administration has the wrong 
priorities.
  Mr. NADLER. Mr. Speaker, I yield 1 minute to the distinguished 
gentleman from Oregon (Mr. Wu).
  (Mr. WU asked and was given permission to revise and extend his 
remarks.)
  Mr. WU. Mr. Speaker, I want to concede to my colleagues who argue for 
the constitutionality of the subject legislation that it is 
constitutional.
  This Congress can strip the Supreme Court of much of its 
jurisdiction, can abolish all appellate courts, and can abolish all 
district courts, but just because we can do something does not mean 
that we should do it.
  We have heard much about arrogant activist judges. What have arrogant 
activist judges done? In 1954 they revoked the reprehensible doctrine 
of separate but equal in Brown v. Board of Education. In 1964 they 
reestablished the principle of one-person/one-vote in Reynolds v. Sims. 
In 1967 they respected the sanctity of all marriages, even those across 
ethnic lines.
  Because we can do something does not mean we should. Let us today not 
hang out the sign on the Federal courthouse door, ``Some Americans Need 
Not Apply.''
  Mr. SENSENBRENNER. Mr. Speaker, I yield 1 minute to the gentleman 
from Arizona (Mr. Franks).
  Mr. FRANKS of Arizona. Mr. Speaker, I thank the chairman for yielding 
me time.
  Daniel Webster said, Hold on, my friends, to the Constitution and to 
the Republic for which it stands, for miracles do not cluster. And what 
has happened once in 6,000 years may never happen again. So hold on to 
the Constitution, for if it should fall, there will be anarchy 
throughout the world.
  Mr. Speaker, Daniel Webster is no longer with us, but if we could 
just realize that we will soon no longer be here either and if we do 
not uphold and defend the Constitution and the foundation of this 
republic and society itself, which is marriage and the family, 
generations will lose this beacon of freedom that we have.
  Mr. NADLER. Mr. Speaker, I yield 2\1/2\ minutes to the distinguished 
gentleman from North Carolina (Mr. Watt).
  Mr. WATT. Mr. Speaker, on a number of occasions during the 12 years 
that I have been in this body, I have risen on this floor to chide my 
colleagues from the Committee on the Judiciary and my colleagues in the 
House for the arrogant and irresponsible belief that we are somehow 
smarter than the Founding Fathers, for the belief that process in the 
system and the form of government that we operate in is less important 
than the result that we seek on a particular issue.
  I think today is the ultimate irresponsible, extreme act in that 
direction. How arrogant and irresponsible is it to say to our American 
people that the United States Supreme Court will not have jurisdiction 
to decide the constitutionality of an issue?

                              {time}  1515

  How extreme is that? It just blows my mind. I have trouble coming to 
grips with the notion that anybody could believe that this is 
responsible legislating, whether it is constitutional or not, that we 
would deprive the United States Supreme Court the authority to 
determine the constitutionality of an issue and disperse it to 50 
different supreme courts of the States and not have one court that 
would be the ultimate arbiter of constitutionality. How arrogant and 
irresponsible can we be?
  That is exactly what this legislation does today. It says to the 
American people that the Supreme Court of the United States no longer 
has the authority to determine constitutional issues. How arrogant, how 
irresponsible can we be?
  Mr. NADLER. Mr. Speaker, I yield 1 minute to the distinguished 
gentleman from New York (Mr. Houghton).
  (Mr. HOUGHTON asked and was given permission to revise and extend his 
remarks.)
  Mr. HOUGHTON. Mr. Speaker, I am not going to support this bill. I do 
not believe it is right. I think court-stripping is wrong. I do not 
think it is sound; and frankly, I do not think it is going to work. How 
are we going to resolve the issue between States?
  I used to be in business, and Congress could have passed a law in the 
1950s when the civil rights issue was heating up that would have 
prohibited any challenges to the segregated businesses that existed all 
around me. There never would have been a civil rights law, never would 
have been a Brown v. Board of Education.
  I voted for the Defense of Marriage Act. It defines marriage for a 
Federal purpose as a legal union between one man and one woman, and 
that is good enough for me.
  Mr. NADLER. Mr. Speaker, I yield such time as she may consume to the 
distinguished gentlewoman from Wisconsin (Ms. Baldwin) to close on our 
side.
  (Ms. BALDWIN asked and was given permission to revise and extend her 
remarks.)

[[Page H6602]]

  Ms. BALDWIN. Mr. Speaker, with this bill, we face no less than the 
specter of a sign posted on the Federal courthouse door which reads, 
``You may not defend your constitutional rights in this court; you may 
not seek equal protection here; you may not petition your government 
for redress here.'' Today, the ``you'' is gay and lesbian American 
citizens, but who will be next?
  Today, the House is considering legislation that were it to become 
law would do grave damage to our Republic.
  I strongly oppose H.R. 3313 and urge all Members to vote against this 
legislation, and I urge the Members of the majority to reconsider this 
extreme and radical approach to addressing the issue of same-sex 
marriage and their concern about so-called judicial activism. Enacting 
court-stripping legislation would seriously undermine the faith of the 
American people in this Congress, in the courts, and in the principles 
of separation of powers.
  When writing the Constitution, our Founders wisely decided that the 
best way to secure our freedoms and liberties was to establish three 
coequal branches of government: the Congress, the executive, the 
Supreme Court; and these three branches of government would have 
different, but overlapping, authorities to ensure that each branch is 
subject to the checks and balances. Not only will there be times that 
they will be in disagreement about a particular issue or law; the 
structure of the Constitution makes these conflicts inevitable.
  It is a terrible mistake to strip one branch of government from its 
involvement in evaluating particular laws, and this is so particularly 
true when considering the courts whose constitutional and historic role 
has been to defend our liberties.
  Once court-stripping, this door becomes open, where will it stop? 
Will this language be added to legislation on issues of abortion, guns, 
prayer, school choice, affirmative action? How about the USA PATRIOT 
Act? I suspect this is just the tip of the iceberg.
  The late Senator Barry Goldwater, a stalwart conservative, said about 
previous court-stripping attempts in this Congress that it is a frontal 
assault on the independence of Federal courts and a dangerous blow to 
the foundations of a free society. I urge my colleagues to reject this 
unnecessary, unconstitutional and unwise legislation.
  Mr. Speaker, today the House is considering legislation that, if it 
were to become law, would do grave damage to our Republic. I strongly 
oppose H.R. 3313 and urge all members to vote against this legislation. 
I urge the members in the majority to reconsider this extreme and 
radical approach to addressing the issue of same sex marriage and their 
concerns about so-called judicial activism. In fact, ``court 
stripping'' is a bad idea in any form. The consequences of enacting 
H.R. 3313 far exceed the stated objective of the majority and would 
seriously undermine the faith of the American people in this Congress, 
in the courts, in the principle of separation of powers, and in the 
notion of checks and balances.
  When writing the Constitution, the founders wisely decided that the 
best way to secure our freedom and liberties was to establish 3 co-
equal branches of government--the Congress, the Executive and the 
Supreme Court. These 3 branches of government have different but 
overlapping authorities to ensure that each branch is subject to checks 
and balances. Not only will there be times that they will be in 
disagreement about a particular issue or law, the structure of the 
Constitution makes these conflicts inevitable.
  In my home State of Wisconsin, our State university, the University 
of Wisconsin, dedicates itself to the proposition that through 
``continual and fearless sifting and winnowing'' . . . ``the truth can 
be found.'' In the context of our laws, this sifting and winnowing 
occurs at many points in the process. In Congress, we hold hearings, 
markups, and floor votes and we offer amendments, we hold conference 
committees and we issue reports. The Executive proposes legislation, 
engages in public debate, signs and vetoes legislation. The Court then 
interprets, evaluates, settles disputes and invalidates laws based on 
bedrock principles enshrined in  our Constitution. Yes, this process 
can be slow, frustrating, and messy at times. But, it is through the 
process, which includes the court, that we sift and winnow our laws to 
improve them and ensure they are fair and just for all Americans.

   It is a terrible mistake to try to strip one branch of government 
from its involvement in evaluating particular laws. This is 
particularly true when considering the courts, whose constitutional and 
historic role is to defend our liberties.
   Fortunately for our citizens, it is my belief that H.R. 3313 is 
unconstitutional and, if it ever becomes law, will ultimately be 
invalidated. However, we should defeat this bill today, no matter what.
   Mr. Speaker, during the Judiciary subcommittee on the constitution's 
hearing on this issue on June 24, the majority and minority each 
invited legal scholars to address the questions: ``Can Congress do 
this?'' and ``Should Congress do this?'' On the former question, the 2 
witnesses disagreed, although even the majority witness, Professor 
Martin H. Redish of Northwestern University, noted that ``Congress 
quite clearly may not revoke or confine Federal jurisdiction in a 
discriminatory manner.'' But on the latter question, ``Should Congress 
do this?'' the legal scholars agreed that we should not.
   Let me quote Professor Redish's testimony on this question because 
it is compelling: ``I firmly believe that Congress should choose to 
exercise this power virtually never.'' There has long existed a 
delicate balance between the authority of the Federal judiciary and 
Congress, and the exclusion of substantively selective authority from 
all Federal courts seriously threatens that balance.''
  Once the ``court stripping'' door is open, where will it stop? Will 
this language be added to legislation on the issue of abortion, guns, 
prayer, school choice, affirmative action? How about the USA PATRIOT 
Act? I suspect that this is just the tip of the iceberg.
  Like the FMA, the Marriage Protection Act is not needed. DOMA remains 
the law of the land and its constitutionality has not been successfully 
challenged in any United States court. Congress must tread lightly when 
trying to modify the important doctrine of separation of powers that is 
the basis for our government. The late Sen. Barry Goldwater (R-AZ), a 
stalwart conservative, said about previous court stripping attempts 
that ``frontal assault on the independence of the Federal courts is a 
dangerous blow to the foundations of a free society.'' I urge you to 
reject this unnecessary, unconstitutional and unwise legislation.
  Mr. Speaker, with this bill, we face no less than the specter of a 
sign posted on the Federal court house door which reads, ``you may not 
defend your constitutional rights in this court, you may not seek equal 
protection here, you may not petition your government for redress 
here.'' Today, the ``you'' is gay and lesbian American citizens. Who 
will it be next?
  Mr. SENSENBRENNER. Mr. Speaker, has the time for the minority 
expired?
  The SPEAKER pro tempore (Mr. Gillmor). The time has expired on the 
minority side.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of the 
time.
  The SPEAKER pro tempore. The gentleman is recognized for 5 minutes.
  Mr. SENSENBRENNER. Mr. Speaker, I believe that this debate has 
fulfilled the majority leader's admonition that the debate be civil. 
There are strongly held positions on both sides of this question, and I 
think that both of them have been very well articulated during the 
course of this debate.
  I firmly believe that this bill is not only constitutional but it is 
also wise and necessary to prevent court decisions from further tearing 
apart the fabric of our society.
  Forty-two years after the Supreme Court decided Marbury v. Madison, 
the court in the case of Cary v. Curtis in 1845 upheld the regulation 
of the judicial power by the Congress, and I would like to quote from 
that decision: ``Dependent for its distribution and organization, and 
for the modes of its exercise, entirely upon the action of Congress. To 
deny this position would be to elevate the judicial over the 
legislative branch of the government, and to give to the Federal 
judiciary powers limited by its own discretion merely.''
  This bill attempts to limit the power of the Federal judiciary to 
export the decision of a divided court in Massachusetts to the other 49 
States which do not have laws granting marriage licenses to same-sex 
individuals.
  The people who have been arguing against this bill, Mr. Speaker, seem 
to think that the State courts are second-class courts, but we believe 
that they are equally capable of deciding Federal constitutional 
questions. Nothing in H.R. 3313 denies the right of a same-sex couple 
married in Massachusetts to file a petition in State court to have that 
license and that marriage recognized within that State, and the State 
courts are perfectly capable of making that determination.
  Somehow my colleague from Wisconsin says that this bill slams the

[[Page H6603]]

door of the Federal courthouse to people who wish to exercise their 
constitutional rights. Well, I spent a lot of time in Madison as a law 
student and as a State legislator, and the current Federal courthouse 
is just a few blocks away from the Dane County Courthouse, and there 
are judges there that will have all the jurisdiction they need to 
adjudicate the claims that the gentlewoman from Wisconsin was talking 
about, and those judges I think are perfectly capable of adjudicating 
those claims, notwithstanding the lack of confidence on the part of 
some of the people who have been arguing against this bill.
  The real issue is the issue of marriage, and marriage is the 
foundation upon which any civilized society has been based, long before 
the United States of America was established and the Constitution was 
ratified in 1789.
  Marriage is under attack as a result of the 4 to 3 decision of the 
supreme judicial court of Massachusetts. This bill does not affect what 
Massachusetts does with that decision.
  Under this bill, it will be the legislature and the voters and the 
judges in Massachusetts, should they change their mind, that will 
determine whether that 4 to 3 decision stands; but what this bill will 
do is to prevent the export of that Massachusetts decision to the other 
49 States that do not allow marriage licenses to be issued to same-sex 
couples.
  I sincerely doubt that when James Madison wrote the Constitution and 
when the legislatures of the 13 States at that time ratified the 
Constitution that they ever dreamed that the Federal judiciary would be 
used to have a decision that has been made in a single State become 
national policy.
  The way we prevent that from becoming national policy is by passing 
this bill. I urge an ``aye'' vote.
  Mr. HASTINGS of Florida. Mr. Speaker, this morning's papers carry, 
among others, the following stories:
  --The New York Times reports that ``The 9/11 Commission is Said to 
Sharply Fault Role of Congress''.
  --The L.A. Times has a story titled, ``The State Department Seeks 
Shift in Iraq Effort''.
  --The Sun Sentinel reports that the American death toll in Iraq has 
reached 900.
  --The Washington Post covers military recruitment, concluding that 
the pool of future recruits has dwindled to its lowest level in three 
years.
  --And, all these papers and others have stories on the poor shape of 
the economy and the hardships that the American people are facing.
  So, I ask: don't we have better things to deal with two days before 
going into recess. Is there any sense of responsibility in this 
Republican Congress?
  This bill, more than anything else, is about the politics of a 
national election. The White House political machine is in full gear, 
playing to the lowest denominator to reinvigorate the xenophobic and 
intolerant wing of the Republican Party.
  Recognizing that they lack the votes to pass the discriminatory 
Federal Marriage Amendment, the Republican House leadership is now 
focusing on slamming shut federal courthouse doors to gay and lesbian 
Americans.
  This bill is at its core a bar on redress for violations of 
fundamental rights. If Congress by statute can end run the Bill of 
Rights, no rights to liberty, due process, or equality under the law 
are safe. Further, it would set the terrible precedent of barring 
citizens from challenging government infringement of fundamental rights 
in federal court.
  For more than 200 years the federal judiciary has been a check on 
legislative and executive action. By eliminating an entire subject from 
the courts' jurisdiction, this legislation threatens to upset the 
delicate balance between the branches of the federal government that 
has served our nation well. Indeed, passage of this legislation would 
represent one of the broadest attacks on the separation of powers in 
American history.
  Once again, it's proven that the most unpopular and vulnerable 
members of society are all too often the first targets of government 
repression. But once the federal courthouse door has been slammed shut 
to one group, it won't be long before others are similarly excluded.
  I am reminded of an incisive quote by Holocaust survivor Ellie 
Wiesel. He said,

       ``They came first for the communists, and I didn't speak up 
     because I wasn't a communist. Then they came for the Jews, 
     and I didn't speak up because I wasn't a Jew. Then they came 
     for the trade unionists, and I didn't speak up because I 
     wasn't a trade unionist. Then they came for the Catholics, 
     and I didn't speak up because I was a protestant. Then they 
     came for me, and by that time no one was left to speak up.''

  I am here to strongly oppose this legislation.
  I can remember of one other group in America that had to wander every 
county courthouse in the country to try to vindicate their rights under 
the Federal Constitution.
  Blacks have experienced the injustice, abuse, and disgrace that the 
Republican Party is promoting with this bill. For example, after the 
Supreme Court's 1954 Brown v. Board of Education decision that school 
segregation violated the Constitution, racist lawmakers furiously 
sought to exempt federal courts from ruling on public education laws.
  I became a public servant with the express mission of preventing one 
of the worst chapters of American history from repeating itself.
  Therefore, I oppose this rule and the underlying bill, and ask--beg--
my colleagues to act responsibly and protect the constitution by voting 
no.
  Ms. SCHAKOWSKY. Mr. Speaker, I rise today in opposition to H.R. 3313, 
the so-called Marriage Protection Act. This bill would expressly forbid 
the federal courts, including the Supreme Court, from hearing cases on 
a Constitutional matter. That not only sounds absurd to me, but I'm 
sure it confuses American Government students across the country who 
are learning every day about our system of checks and balances and the 
role of the courts in our country.
  But this bill not only violates the principle of separation of 
powers, it also grossly violates our equal protection and due process 
rights. This bill singles out a group of people who simply want to live 
in peace with the person they love and denies them access to the courts 
in order to fight for equal rights. If we pass this bill, then I wonder 
who is next--what group of people is next on the target list for being 
singled out and denied rights?
  It strikes me that this bill is yet another example of how the 
Republican leadership in this country simply changes the rules when 
things aren't going their way so that the outcome will shift in their 
favor, regardless of the effects on our civil rights. We've seen votes 
held open for hours and funding cut off for popular and critical 
programs just so the Republican leadership can have their way. And, in 
this case, the Republican leadership is willing to go so far as to 
change the Constitutional rules and principles that we have lived by 
for centuries--the guarantee that any group or individual who feels 
their rights have been violated can go to court to seek redress--in 
order to protect a law that we passed eight years ago. This is simply 
unacceptable, and I urge my colleagues to vote no on H.R. 3313.
  Ms. DeGETTE. Mr. Speaker, I rise in opposition to H.R. 3313, the so-
called ``Marriage Protection Act.''
  I was really tempted to offer an amendment mandating that every 
Member of Congress watch ``School House Rock'' before they are allowed 
to cast another vote. If you have kids, you are probably familiar with 
School House Rock. It is the old, ever-popular kids show that explains 
how American government works. It imparts information on basic civics 
in fun and easy to understand terms, for example, how there are three 
branches of government that provide the check and balances that are the 
bedrock of our country.
  But then I decided that, although more of my colleagues than I ever 
believed possible desperately need this sort of basic primer on 
government, it didn't seem fair to waste Members' time, like our time 
is being wasted today as we are forced to debate and vote on this 
utterly absurd piece of legislation.
  Our Founding Fathers established clear separation of powers between 
the three branches of government. Rep. Hostettler and the Republican 
leadership are trying to dictate to our formerly independent judiciary 
what cases it can or cannot consider. This is a court-stripping measure 
that could lead to Congress's removal of the courts' jurisdiction any 
time a controversial measure might come before the federal bench.
  The Hostettler bill would ban any federal court, including the 
Supreme Court, from having jurisdiction over challenges to the Defense 
of Marriage Act. This would mark a nearly unprecedented effort by one 
independent branch of the federal government, the Congress, to limit 
the jurisdiction of the judiciary branch.
  This is the Republican leadership's last ditch effort to get a vote 
on gay marriage in the House to effect the election this fall. We are 
considering legislation to pre-empt an action that has not taken place. 
The Defense of Marriage Act, which passed in 1996, is not being 
challenged. This is a cop out, not a compromise. They know they don't 
have the votes on the Federal Marriage Amendment so they are grasping 
at straws.
  In Federalist Paper 78, Alexander Hamilton defended the need for an 
independent judiciary. As the only branch of the federal government not 
swayed by campaigning, Hamilton asserted that it was the branch best 
able to protect the Constitution from political meddling by the 
Congress or the President. He also foresaw just the type of action 
being attempted by Republicans in Congress today,

[[Page H6604]]

warning ``. . . there is no liberty, if the power of judging be not 
separated from the legislative and executive powers.
  If this bill, by some miracle were actually to be signed into law, 
and by an even bigger miracle, was not immediately overturned because 
of its blatant unconstitutionality, it would be a horrible precedent in 
preventing the most basic redress available to the American people.
  Imagine bill after bill being passed in Congress, with the same 
language tacked on at the end saying that once this law passes it can 
never be challenged in the federal courts, including the Supreme Court. 
Today the issue is gay marriage, but tomorrow the issue could be 
anything.
  This bill is incredibly short-sighted and it goes against the very 
principles that so many of its supporters purport to honor as public 
servants. It really would be laughable if it weren't so scary.
  I urge a ``no'' vote on this ridiculous, unconstitutional and frankly 
un-American bill.
  Mr. BEREUTER. Mr. Speaker, this Member voted for the Defense of 
Marriage Act (DOMA), P.L. 104-199, which defines marriage as ``a legal 
union between one man and one woman as husband and wife'' and a spouse 
as ``a person of the opposite sex that is a husband or a wife.'' It 
allows each state to determine if it will recognize the same sex 
marriages sanctioned by other states. Also, it is this Member's view 
that the legal approval of same-sex marriages is not in the public 
interest--as contrasted with legislation authorizing civil unions 
between two people of the same sex. In short, that means this Member 
opposes same-sex marriages and believes that the Massachusetts Supreme 
Judicial Court's decision was both ill-advised and harmful.
  However, I believe that attempting to strip the jurisdiction of the 
U.S. Supreme Court to possibly consider this issue is a rather 
extraordinary step that is an unfortunate and even dangerous precedent 
for future attempts to justify stripping the jurisdiction of the U.S. 
Supreme Court on other controversial societal issues. Therefore, this 
Member voted ``no'' on H.R. 3313. The rights of the minority must be 
protected from inappropriate use of power by a majority, and the 
Supreme Court sometimes is the final protector of the minority; 
stripping the court of jurisdiction gradually by legislative action 
will disturb the necessary checks and balances established in the U.S. 
Constitution.
  This Member makes this statement fully acknowledging that judicial 
activists in both the Federal Government and state governments 
sometimes badly abuse their position as was the case with the 
Massachusetts Supreme Judicial Court.
  Ms. McCOLLUM. Mr. Speaker, I rise today in strong opposition to H.R. 
3313, the Marriage Protection Act. This dangerous bill would severely 
undermine our constitutional checks and balances and set a precedent 
that undermines the independence of the federal judiciary.
  Republicans in Congress and the Bush Administration know their 
domestic and foreign policies are failing--so they are changing the 
subject. The war in Iraq is a quagmire. Our schools under funded. Our 
seniors are without the prescription drugs they need and millions of 
Americans are without jobs.
  Despite the many challenges facing our nation, the Republicans have 
chosen to ignore the real needs of the American people. In the process, 
they are hijacking our constitutional checks and balances and advancing 
an extreme right-wing agenda.
  For years, key decisions by the courts on the social issues of the 
day, including school prayer, busing, abortion and the Ten 
Commandments, have been followed by Republican court-stripping bills to 
remove the court's authority to hear challenges to such important 
cases. The Marriage Protection Act is just another example of a power 
grab that extends Republican control from the White House to Congress 
to the federal judiciary.
  This attack on the Judicial Branch's authority to hear cases based on 
Legislative and Executive actions is in fundamental contrast to the 
spirit of our democracy and the U.S. Constitution. Appropriately, most 
legal scholars have agreed that even if this bill was to become law, it 
would be unconstitutional. The fact that this legislation has advanced 
far enough to warrant a vote in the full U.S. House should raise alarm 
to the extent the Republican Majority will go to advance their right 
wing agenda.
  This legislation should be defeated. The House must send a strong 
message that we reaffirm our constitutional system of checks and 
balances between the three branches of government, and we support the 
basic, civil rights of all Americans--regardless of age, gender, race 
or sexual orientation. We have a responsibility to protect the 
Constitution, not render it unnecessary.
   Mrs. BONO. Mr. Speaker, I rise against H.R. 3313, the Marriage 
Protection Act, not because I seek to promote gay marriage but because 
I believe this bill fails to pass constitutional muster.
   Perhaps it is for this reason that Congress has never enacted 
legislation to prohibit all federal courts, including the Supreme 
Court, from hearing cases on constitutional matters. It is not within 
the interest of this institution to begin this practice now. This path 
can only lead us towards a slippery slope with no clear end in sight.
  I understand there are strong feelings on the issue of gay marriage 
on either side of the debate. I, for one, strongly believe in the 
sanctity of marriage and that marriage is between one man and one 
woman. But what this bill does is preclude even the ultimate arbiter of 
the United States legal system, the Supreme Court, from reviewing a 
constitutional matter. In fact, under this bill, even those who would 
seek to overturn a state's gay marriage law would not be able to appeal 
to the Supreme Court.
  Certainly, Congress has stripped statutory questions, like tree 
cutting, from federal courts. But none of these issues have fallen upon 
constitutional grounds. Even the non-partisan Congressional Research 
Service maintains that ``We are not aware of any precedent for a law 
that would deny the inferior federal courts original jurisdiction or 
the Supreme Court of appellate jurisdiction to review the 
constitutionality of a law of Congress.''
  However, I strongly believe in the concept of ``checks and 
balances.'' Rest assured, should a federal court begin to exercise 
judicial activism that hijacks the powers of the other two branches, it 
is up to those branches of government to check the judicial branch and 
bring it back into balance. But this isn't the case here. In fact, one 
could question whether or not Congress, with this bill, would encroach 
upon the powers of the Supreme Court in having the final say.
  As of today, our system of ``checks and balances'' is working. Until 
this environment changes or breaks down, the most positive action 
Congress can take is to let the system work.
  Mr. SHAYS. Mr. Speaker, I oppose H.R. 3313, legislation which would 
prevent our courts from ruling on the constitutionality of the Defense 
of Marriage Act.
  I value our justice system and place great faith in the ability of 
our courts to ensure the laws we pass are constitutional. The bottom 
line is, taking the federal courts out of the process by specific 
legislation is not an appropriate remedy for any issue.
  I am sensitive to my colleagues and constituents who oppose gay 
marriage. But we cannot deny Americans the constitutional rights to 
which they are entitled and ignore two centuries of judicial precedent, 
in order to address an issue that should be decided by the states.
  I strongly oppose H.R. 3313 and urge my colleagues to do the same.
  Ms. HARMAN. Mr. Speaker, in July of 1996, I stood on the House Floor 
and spoke in opposition to the Defense of Marriage Act. Eight years 
later, here I am again, standing in opposition to another attempt to 
divide this nation in an election year and ostracize some of our 
citizens. Only this time, we're going even further. This time, we are 
considering legislation that would, for the first time in our Nation's 
history, seek to exclude a specific group of people from access to the 
federal court system.
  The fact that we are having this debate at this time is as shameful 
as the debate itself. Our Nation faces many pressing and critical 
problems: the size of the Federal deficit and its effect on our 
international competitiveness; threats from rogue nations and 
terrorists; and an intelligence system that is in desperate need of 
repair, to name a few. Yet, rather than focusing our energy on 
protecting our citizens, Congress is debating of a resolution that 
would take away the rights of some Americans.
  There are three really good reasons to vote against H.R. 3313. It's 
unconstitutional, it discriminates against some Americans, and, for 
those of you who supported DOMA, it will muddle the definition of 
marriage and undermine the stated intent of DOMA.
  Eight years ago, I warned that the Defense of Marriage Act was an 
unconstitutional solution in search of a problem. With the measure we 
are considering today, my colleagues on the other side of the aisle 
have out-done themselves. H.R. 3313 is the mother of all 
unconstitutional legislation.
  The bill strips the U.S. Supreme Court's original jurisdiction over 
cases where a state is a party in a DOMA dispute. Original jurisdiction 
is conferred on the Supreme Court by the Constitution, not by Congress.
  Second, this bill is overtly discriminatory. If it were enacted into 
law, Congress would, for the first time in U.S. history, block a 
specific group of Americans--same-sex couples and their children--from 
having full access to the federal court system. It is unconscionable 
that we would even consider legislation to deny ANY American the right 
to seek justice through our federal court system.

[[Page H6605]]

  Finally, we were told that the intent of DOMA was to preserve the 
traditional definition of marriage. Now we are considering legislation 
that would make each of the 50 state supreme courts the final authority 
on the constitutionality of DOMA. This will create a patchwork of state 
laws on the recognition of marriage, and muddle its definition. Those 
who support this bill can no longer hide behind the states' rights or 
the marriage preservation argument. This measure reveals the clear 
intent of its drafters--to deny certain individuals equal treatment 
under the law.
  I urge my colleagues to stand up and reject this divisive, untimely, 
and likely unconstitutional bill.
  Mr. OBERSTAR. Mr. Speaker, I rise today in opposition to the so-
called Marriage Protection Act (H.R. 3313). This bill, contrary to its 
title, has nothing to do with protecting the institution of marriage. 
This bill is, in fact, an all-out assault on the U.S. Constitution and 
our entire system of government. H.R. 3313 has monumentally perilous 
implications for three basic principles of our democracy--equal 
protection, due process, and the separation of power between the three 
branches of government.
  This bill discriminates against one class of people, homosexuals, by 
saying they cannot challenge a law in federal court to determine 
whether their fundamental rights have been violated. This bill would 
enable any future majority in Congress to draft laws that would 
discriminate against any class of people or minority group, and which 
would then be insulated from a challenge in federal court.
  As delineated in the Constitution, the separation of powers doctrine 
represents the fundamental principle that our federal government 
consists of three basic and distinct functions, each of which must be 
exercised by a different branch of government, so as to avoid the 
arbitrary or excessive exercise of power by any single ruling body. 
Through this structure, the Framers of the Constitution sought to 
create an effective, interdependent governmental system which would 
limit the power vested in any one branch. H.R. 3313, if enacted, would 
undermine our system of checks and balances, which was carefully 
crafted by our Founding Fathers to ensure that none of the three arms 
of government could encroach upon another, or impose its will 
unilaterally upon the public.
  One element of the checks and balances system is the principle of 
judicial independence, which is so crucial to maintaining our unique 
democratic system. The Supreme Court's role (under the 1803 case of 
Marbury v. Madison) is as the final authority on the constitutionality 
of federal laws. By passing H.R. 3313, Congress would arbitrarily usurp 
the Supreme Court's power and rightful purpose by appointing itself as 
both maker and arbiter of the law.
  In 1937, President Franklin Delano Roosevelt sent to Congress a bill 
to reorganize the federal judiciary, which was motivated by the 
consistent opposition that his New Deal legislation had been 
encountering in the lower federal courts and the Supreme Court. By 
increasing the number of judges on the Supreme Court, President 
Roosevelt hoped to change the balance of opinion of the court. 
President Roosevelt's proposal met with fiery opposition in Congress--
even by those who supported his New Deal policies. Simply put, whether 
the underlying intent of a legislative initiative is good or bad, if it 
subverts the Constitution and destroys the independence of the 
judiciary, it should be defeated.
  Over the years, notable conservatives have spoken out against similar 
court stripping proposals. For example, in 1985, Senator Barry 
Goldwater stated, ``What particularly troubles me about [court 
stripping proposals] is that I see no limit to the practice. There is 
no clear or coherent standard to define why we shall control the Court 
in one area but not another. The only criterion seems to be that 
whenever a momentary majority can be brought together in disagreement 
with a judicial action, it is fitting to control the federal courts.''

  Goldwater also said ``those who seek absolute power . . . are simply 
demanding the right to enforce their own version of heaven on earth, 
and let me remind you they are the very ones who always create the most 
hellish tyranny. Absolute power does corrupt and those who seek it must 
be suspect and must be stopped.''
  During the debates on the adoption of the Constitution, its opponents 
repeatedly charged that the Constitution as drafted would open the way 
to tyranny by the central government, and they demanded a ``bill of 
rights'' that would spell out the immunities of individual citizens. 
The ten amendments to the Constitution, which were enumerated in 1789, 
have since been expanded to include other democratic principles.
  The Equal Protection Clause of the 14th amendment prohibits states 
from denying any person within its jurisdiction the equal protection of 
the laws. The question of whether the equal protection clause has been 
violated arises when a state grants a particular class of individuals 
the right to engage in activity yet denies other individuals the same 
right.
  Another fundamental principle which is mentioned in the 5th and 14th 
amendments, due process, requires that the procedures by which laws are 
applied must be evenhanded, so that individuals are not subjected to 
the arbitrary exercise of government power. In his 1961 dissenting 
opinion in Poe v. Ullman, Justice Harlan stated, ``[t]he guaranties of 
due process, though having their roots in Magna Carta's `per legem 
terrae' and considered as procedural safeguards `against executive 
usurpation and tyranny,' have in this country `become bulwarks also 
against arbitrary legislation.' ''
  Indeed, this bill, if enacted, has implications that will haunt this 
body and our entire nation for years to come. Our Founding Fathers, by 
setting up our government with checks and balances, sought to protect 
the future of our democracy from the tyranny of the majority. Thomas 
Paine, in ``The Rights of Man'' said ``every age and generation must be 
as free to act for itself in all cases as the age and generations which 
proceeded it. The vanity and presumption of governing beyond the grave 
is the most ridiculous and insolent of all tyrannies. . . . That which 
may be thought right and found convenient in one age may be thought 
wrong and found inconvenient in another. In such cases, who is to 
decide, the living or the dead?''
  In earlier days, narrow-minded legislators have advocated court-
stripping to fight policies they opposed, such as desegregation, but 
those efforts have always been defeated by sensible, rational 
lawmakers. No other Congress has passed a law that totally eliminates 
the federal courts' ability to review the constitutionality of a 
federal law. I pray that this 108th Congress will not be the first.
  Mr. ETHERIDGE. Mr. Speaker, I oppose this bill because it sets a 
dangerous precedent and upsets the delicate balance of power that is 
the heart of our Constitutional democracy. For more than 200 years, 
America has flourished under the Constitution of 1789 because the 
Framers successfully erected a system of checks and balances that 
assigned to the courts the task of interpreting the laws. This bill 
would upset that balance by intruding on that process and stripping 
from the courts the powers set forth by our Founding Fathers.
  The implications of this precedent are very serious and go well 
beyond the boundaries of the current debate. If Congress passes H.R. 
3313, what is to stop this Congress or a future Congress from stripping 
the courts of the duty to hear cases involving gun ownership, the death 
penalty, property rights, or any other controversial issue? Nothing. 
And this dangerous precedent would only encourage Congress to undertake 
such meddling. The notion that this Congress, which cannot even pass a 
budget or the appropriation bills needed to keep the government 
running, has better judgment on Constitutional matters than Thomas 
Jefferson, James Madison and John Marshall, is ludicrous.
  Mr. STARK. Mr. Speaker, I rise in outraged opposition to H.R. 3313, 
the So-Called ``Marriage Protection Act.'' This blatantly 
unconstitutional piece of legislation speaks volumes about the 
uncontrollable homophobia of the Republican Party and its desperation 
to change the subject from the quagmire in Iraq.
  The Republicans' fear of the Federal courts is somewhat surprising. 
The Supreme Court, after all, despite occasionally tempering the 
Republicans' hatred of minorities, immigrants, the accused, and others 
who have the gall to insist on their Constitutional rights, has been 
pretty good to the Republican Party. It gave them the President they 
wanted and has given them great leeway to run roughshod over the 
environment and the disabled in the name of States' rights.
  Most legal experts agree that this Court would likely uphold the 
Defense of Marriage Act, and yet the Republicans would rather set a 
new, frightening precedent of letting 50 different State courts be the 
final arbiters of our laws. They prefer that State judges, rather than 
Federal judges confirmed by the Senate, make Constitutional law.
  Thankfully, the right wing wasn't in control of the Republican Party 
back when desegregation and Miranda warnings were before the courts, as 
there were court-stripping proposals on those subjects, too. They would 
never think of passing a bill today barring African Americans from 
seeking the protection of Federal courts, but sadly, gay and lesbian 
Americans incur their wrath over everything from the breakdown of the 
family to the continued inability of the Red Sox to win the World 
Series. Their delusion would be funny if it weren't so reckless and 
harmful.
  Mr. Speaker, this bill is all about re-directing blame. Everyone here 
realizes that if Congress could just pass whatever laws it wanted and 
throw in a line to keep them from being held unconstitutional, our 
Constitution and our Separation of Powers would be rendered 
meaningless. So let's just admit what this is really about: changing 
the subject from Iraq and attacking defenseless Americans.

[[Page H6606]]

  Shame on any Member of this body who will trample on our Constitution 
just to score a few political points. If the Oath we all took to 
``support and defend the Constitution of the United States'' means 
anything to you, you will ``No'' on this election-year ploy.
  Mr. UDALL of Colorado. Mr. Speaker, it is a cliche to say that there 
is no perfect legislation. But, to use another cliche, this bill seems 
to be an exception that proves that rule--because it is not only 
perfectly unnecessary but also a perfectly bad idea.
  The bill seeks to prevent any Federal court--including the U.S. 
Supreme Court--from deciding ``any question pertaining to the 
interpretation of, or the validity under the Constitution'' of the part 
of the ``Defense of Marriage Act'' (DOMA) that says no State is 
required to give legal recognition to a same-sex relationship that is 
treated as a marriage under the laws of any other State. It also is 
intended to prevent any Federal court review of the constitutionality 
of this bill itself.
  That would mean that the State courts alone would have the power and 
responsibility for interpreting two Federal laws. I cannot support 
that.
  My opposition does not mean I think State court judges are not 
qualified to decide such questions. I have very high regard for their 
ability and for the vital role that the States and their courts play in 
our Federal system.
  But I have an even higher regard for the fact that each State is a 
part of a greater whole--of the United States--which make up one 
nation, based on the principles of ``liberty and justice for all,'' in 
the words of the Pledge of Allegiance.
  And this bill directly attacks that national unity, seeking to 
replace it with a system in which each of the 50 State supreme courts 
would be the final authority on important questions involving relations 
between the States and between the Legislative and Judicial branches of 
the Federal Government.
  This is not only unnecessary--no court, State or Federal, has ruled 
on DOMA--but both possibly unconstitutional and definitely dangerous.
  I say possibly unconstitutional because the Judiciary Committee's 
report and today's debate show there are strong disagreements about the 
constitutionality of the bill, even among Members with much greater 
legal expertise than I can claim.
  But while its constitutionality seems doubtful at best, I have no 
doubt about the bill's dangers and I am convinced that whether or not 
it is constitutional, it should be rejected.
  In reaching that conclusion, I find myself in agreement with our 
former colleague, the gentleman from Georgia, Bob Barr.
  In a letter of July 19th, Mr. Barr notes the potential for the 
``chaotic result'' of ``50 different interpretations reached by State 
supreme courts, with no possibility of the U.S. Supreme Court reversing 
any incorrect interpretation'' of the Federal laws involved.
  But he then goes on to say that the ``principal problem'' with the 
bill is even worse: ``H.R. 3313 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.''
  I completely agree with than analysis. And Mr. Barr and I are not 
alone in that view. In more or less the same terms, it is echoed by 
many others, including the Leadership Conference on Civil Rights, the 
Mexican-American Legal Defense and Educational Fund, Legal Momentum, 
and the Human Rights Campaign.
  Of course, this bill does have its supporters, and in fact may 
attract a majority when we vote today. But if today there is a majority 
for putting DOMA beyond Federal judicial review, tomorrow there may be 
a different majority with a different idea of what legislation should 
be given such status.
  Will tomorrow's majority want to protect future gun-control laws from 
the judges who struck down the Gun-Free School Zones Act? Or will they 
want to prohibit the Federal courts from ruling on such matters as 
State immunity from certain lawsuits? Or might they seek to reverse Roe 
v. Wade or some other Supreme Court decision by passing a new law and 
prohibiting the courts from reviewing it?
  None of us can know the answers to those questions, because nobody 
knows what the future holds. But I am convinced that what we do today 
could shape the future in ways that could undermine the checks of the 
balances of the constitution and thus weaken the restraints on 
legislative power that protect the liberties of all Americans.
  And because I think it would be profoundly unwise to risk so much on 
such a radical experiment, I will vote against this bill.
  Mr. BARRETT of South Carolina. Mr. Speaker, marriage goes to the 
heart of our families and our society. My home State of South Carolina 
is one of at least 42 States that have laws on the books defining 
marriage as the union of a man and a woman. These laws were passed by 
the State legislature; those elected to represent the views of their 
constituents. My constituents contact me on a daily basis about this 
one issue more than any other issue. They want me to ensure marriage 
between a man and a woman is preserved.
  Yet some in this country, elected by no one, believe they have the 
right to supercede the wishes of my constituents and the constituents 
of other members here today.
  I respectfully disagree. I believe the only way to ensure court 
action does not override State law is for the House and Senate to take 
action. I thank Mr. Hostettler for bringing this legislation to the 
floor of the people's house for debate, it is time we, as elected 
officials, have an opportunity to give a voice to our constituents' 
concerns.
  Mr. Speaker, I urge my colleagues in the House to vote in favor of 
H.R. 3313, the Marriage Protection Act and protect the sanctity of 
marriage.
  Ms. WATSON. Mr. Speaker, I rise in very strong opposition to H.R. 
3313, the so-called ``Marriage Protection Act,'' a misnomer that would 
make George Orwell smile. The fact is, just like the Federal Marriage 
Amendment, this Court Stripping bill is unnecessary, unwise, and serves 
as little more than a distraction from the many urgent matters facing 
our Nation.
  Like the Federal Marriage Amendment, the Court Stripping bill is not 
needed. The Defense of Marriage Act remains the law of the land and its 
Constitutionality has not been overturned in any United States court. 
Furthermore, H.R. 3313 is a grave threat to the protection and 
enforcement of civil rights laws, and will erase decades of social 
progress all in the name of ``marriage protection.''
  Historically, the judicial branch has often been the sole protector 
of the rights of minority groups against the will of the popular 
majority. Cases such as Brown v. Board of Education come to mind. The 
Court Stripping bill would deny the courts the ability to hear 
challenges to a legislation by a specific minority group, in this case 
gays and lesbians, thus creating a slippery slope where any law could 
be subject to ``courtstripping.''
  This is a serious challenge to our fundamental system of checks and 
balances. The Court Stripping bill is the first, and undoubtably NOT 
the last, effort by the Republican Congress to hamstring an independent 
Federal judiciary. This reckless bill would take away even the Supreme 
Court's authority to decide on a Federal law.
  Those who are advocating the Court Stripping bill today use the 
argument of ``judicial activism'' in Massachusetts and other States as 
a justification. Make no mistake about it, these same arguments were 
also advanced by defenders of segregation in the South in response to 
the Brown v. Board of Education decision and other decisions such as 
Loving v. Virginia that invalidated State anti-miscegenation law.
  There are so many issues that this Republican-controlled Congress has 
failed to address. We don't have a budget. We haven't passed all of our 
appropriations bills we are engaged in, with no end in sight, and our 
economy has failed to generate the jobs necessary to keep the GDP 
growing. Meanwhile, this Republican Congress is taking up a divisive, 
discriminatory, and completely unnecessary legislation just to appeal 
to their far right base and to drive a wedge into this upcoming 
election. It is cynical and simply dead wrong.
  Mr. Speaker, I urge my colleagues to join me in rejecting this 
hateful, unconstitutional, and discriminatory legislation.
  Mr. BUYER. Mr. Speaker, I rise in strong support of H.R. 3313, the 
Marriage Protection Act, introduced by my good friend and fellow 
Hoosier Mr. Hostettler.
  In recent years, judicial activism has continued to attack the 
traditions that have defined this Nation--our pledge of allegiance 
declared unconstitutional--and now it seems that marriage is its next 
target.
  In 1996, Congress passed the Defense of Marriage Act by a wide margin 
in this Chamber and in the other body. I cosponsored the Defense of 
Marrige Act. It was necessary to pass the Defense of Marrige Act to 
preserve the States their ability to decide for themselves how marriage 
is to be constituted within their respective borders. To remind this 
body of the definition of federalism seems elementary, but I fear that 
a lesson may be needed for those who do not support this legislation.
  The Defense of Marrige Act provides that for Fedreal law, marrige 
shall mean the union of one man and one woman. It further provides that 
the States do not have to recognize alternative unions established in 
other States. Since that time, 44 States of our Union have passed laws 
that provide that marriage shall consist only of the union of one man 
and one woman. My State of Indiana has done so.
  Now, traditional marriage is under attack and the ability of States 
to protect traditional marriage within their borders is threatened . . 
. threatened by the judicial branch.
  The Marriage Protection Act, H.R. 3313, is a further step to insure 
that States maintain

[[Page H6607]]

the ability to define marriage within their borders and that States are 
not forced, against the will of their citizens acting through their 
elected State legislatures, to accept the contortions of marriage 
legalized in other States. H.R. 3313 would prohibit the lower Federal 
courts and the Supreme Court from hearing cases that arise under the 
Defense of Marrige Act.
  Congress has clear Constitutional authority to establish the 
jurisdiction of the lower Federal courts. In Article III, Congress is 
given the authority to establish the lower courts and to define the 
appellate jurisdiction under the regulation of Congress. This is part 
of the checks and balances that our Founding Fathers wove into the 
Constitution, to ensure that one branch does not exercise power beyond 
its bounds.
  It is unfortunate that circumstances have arisen that have created 
the need for H.R. 3313. One State in the Nation has declared that 
``marriage'' can be applied to relationships other than one man and one 
woman; and our fear is that the Federal courts will take the action of 
one State court and apply it to all 50 States. H.R. 3313 is insurance 
that the action of this State in expanding the definition of marriage 
does not have to be recognized in other States unless the people of 
that State agree to do so.
  I commend the gentleman from Indiana's 8th district for introducing 
this legislation and I strongly urge its adoption.
   Ms. ESHOO. Mr. Speaker, I come to the floor today to urge my 
colleagues to vote against this bill. The Marriage Protection Act would 
strip the jurisdiction of Federal courts to hear cases interpreting the 
Defense of Marriage Act or the Federal Marriage Statute.
   First, this bill is wrong because it will strip Federal courts, 
including the Supreme Court, of their ability to hear and review 
Constitutional cases, something that Congress has never done in our 
history. The courts are an equal branch of our government. Any attempt 
to weaken their authority undermines a 200-year precedent and severely 
endangers the separation of powers that our government is based on. The 
fact that this kind of action has never been undertaken in the history 
of this great nation speaks to the absurdity of the bill.
   Second, this bill is discriminatory. It singles out one group of 
people and tells them their interests won't be heard by the highest 
courts in the land This sends a chilling message, not only to the 
citizens of this country, but to people all over the world that the 
United States is moving backward, not forward on issues of civil 
rights.
   Mr. Speaker, no legal crisis exists. This bill is all about politics 
. . . driving a wedge between people on the eve of party conventions 
and a national election. It's not only cynical, it's a disservice to 
the people we represent. What we do with this issue will be forever 
remembered. I urge my colleagues to oppose this bill. by casting a no 
vote, we say no to discrimination and state our unwillingness to upset 
the balance of the equal branches of government.
  Mr. KIND. Mr. Speaker, I rise in opposition to H.R. 3313, the so-
called Marriage Protection Act. I believe Congress should be focused on 
supporting American troops fighting in Iraq and Afghanistan, helping 
the eight million Americans who are looking for jobs, and passing a 
budget laying out our priorities for fiscal year 2005. Instead, we are 
debating a bill that fails to address the issues that are of the most 
importance to our citizens and that is blatantly unconstitutional.
  H.R. 3313 would strip the Federal courts, including the Supreme 
Court, of jurisdiction over any cases dealing with the Defense of 
Marriage Act (DOMA). This would lead to a patch-work of different 
decisions from various States which would prove to be unmanageable. 
Furthermore, it would establish a ridiculous precedent. Whenever 
Congress passes a law, it could merely insert comparable language 
prohibiting Federal courts from ever reviewing that legislation to 
ensure it complies with the United States Constitution. In effect, this 
bill places the actions of Congress above the law. Clearly, this is not 
what our Founders intended when they established the separation of 
powers that has worked well for over 200 years.
  This bill is unconstitutional in three ways: it violates the 
principle of equal protection by depriving a group of people of their 
right to their day in court; it is inconsistent with the due process 
clause which demands an independent judicial forum capable of 
determining Federal constitutional rights; and it violates the concept 
of separation of powers, so crucial to our system of governance.
  Grammar school students in my home state of Wisconsin could tell you 
that the American system of government finds its strength from our 
system of checks and balances, a concept that was bold and 
revolutionary when the Constitution was written over 200 years ago and 
is now embraced by countries around the world. It is this system that 
keeps the presidency from becoming a dictatorship, the court from 
becoming an oligarchy, and members of Congress from becoming despots. 
If we strip the Federal courts of their seminal role in our process of 
law, we will have rejected the work of James Madison and the other 
Founding Fathers who wrote the document that is the oldest written 
constitution in the world still in effect. Furthermore, it jeopardizes 
all the rights guaranteed in our Constitution, especially the Bill of 
Rights. It would also allow a future Congress, that may not like gun 
ownership in our country, to prohibit gun ownership and then strip 
Federal courts from the ability to review the law to see if it complies 
with the Second Amendment.
  I cannot vote for a bill that would blatantly reject the 
Constitution, a document which I swore to uphold upon entering 
Congress. Regardless of our views on particular issues, I believe that 
each of us in the House of Representatives should respect the Federal 
courts as an equal branch of government, and I urge my colleagues to 
reject this bill.
  Mr. GRIJALVA. Mr. Speaker, I rise today in opposition to the drastic 
and shortsighted measure to strip courts of their authority to review 
the Constitutionality of the Defense of Marriage Act. This is a very 
clear and easy vote for me, but in no way does that make it 
insignificant. To the contrary, this is the most important civil rights 
vote of the year. Congress has not passed a federal court stripping 
measure since 1868, though it has been attempted on nearly every hot 
button issue in the past 50 years (prompted by Brown v. Board, Roe v. 
Wade, Loving v. Virginia, and others), always with the premise of the 
need to ``limit activist judges.''
  Republicans are trying to undermine the legitimacy of these justices 
because they are not elected. The founders deliberately created an 
unelected body that would not have to make the political calculations 
that the President and Members of Congress need to consider in our 
controversial decisions. Justices are, by design, removed from the 
political or electoral process to serve lifetime appointments where 
they can make independent decisions. Naturally, these decisions often 
come before the public is quite ready for them. Such was the case with 
the prohibition of interracial marriage. In 1967, the Supreme Court 
stated that such a prohibition would ``deprive . . . liberty without 
due process of law in violation of the Due Process Clause of the 
Fourteenth Amendment. The freedom to marry has long been recognized as 
one of the vital personal rights essential to the orderly pursuit of 
happiness by free men.'' We now look back on the prohibition of 
interracial marriage as abhorrent and appreciate the court's decision 
in Loving v. Virginia in helping us reach this realization.
  This bill is not about marriage, as the title claims. This bill is 
about denying a day in court for an entire class of Americans. This is 
a question of fairness, equality, and social justice. We cannot, in the 
interest of fairness to all, exclude selected groups of Americans from 
enjoying equal protection under the law. Furthermore, court stripping 
is blatantly unconstitutional. It violates the separation of powers, 
due process, and equal protection clauses in our Constitution.
  If you think this is an easy vote because it will never pass 
constitutional muster to become law, I remind you of the oath we all 
took the day we were sworn into office. Every single one of us has 
sworn to ``protect and defend the Constitution of the United States 
against all enemies, foreign and domestic.'' A vote in favor of this 
bill is an attack on the very document that we have sworn to defend.
  This body is not at liberty to pick and choose which of the laws we 
pass should be subject to judicial review. The founders created three 
equal branches of government, a true system of checks and balances that 
has served us well for over 200 years. The power of one should not 
outweigh the other or the system will be fundamentally undermined.
  I urge my colleagues to vote against this measure to condone 
discrimination, undermine the Constitution, and disrupt the democratic 
process.
  Mr. UDALL of New Mexico. Mr. Speaker, I rise today to strongly oppose 
H.R. 3313, the so-called ``Marriage Protection Act.'' There is nothing 
in this bill that will provide protection to us or to the institution 
of marriage. On the contrary, this bill will create an extremely 
dangerous precedent in our legislative system and could cause 
inculculable harm.
  When I was sworn in as a member of this House, I promised to uphold 
the Constitution of the United States. Every member of this body made 
the same promise. The Majority's push for passage of this bill sadly 
signals a step back from that promise and further calls into question 
the true motivations of the bill's supporters.
  The unconstitutionality of this bill is quite clear. The 14th 
Amendment to the U.S. Constitution reads, ``No state shall make or 
enforce any law which shall abridge the privileges or immunities of 
citizens of the United States; nor shall any state deprive any person 
of life, liberty, or property, without due process of law; nor deny to 
any person within its jurisdiction the equal protection of the laws.'' 
By

[[Page H6608]]

denying Americans who wish to challenge the Defense of Marriage Act 
their day in federal court, H.R. 3313 blatantly violates this equal 
protection clause. The bill singles out a specific group of Americans 
and tells them that they cannot have their day in court, thereby 
denying them due process.
  Moreover, this bill violates the separation of powers. Our democracy 
is reliant upon an independent judiciary, and judicial review is a 
crucial part of our system of checks and balances. By adding a clause 
to a bill stipulating that cases against it must not be heard by 
federal courts as H.R. 3313 does, we are overreaching our powers to 
legislate.
  If this bill passes the House today, I ask the leaders in the 
Majority: What's next? If we enact a bill into law saying that Defense 
of Marriage Act cases cannot be heard in federal courts, where do we 
stop? School prayer, gun control, abortion, obscenity--shall we say 
that none of these issues may be heard in federal court? What issue or 
group of people will be next?
  Broad opposition to this bill from my constituents and colleagues 
gives me hope that this bill may not make its way to the President's 
desk. Those opposed include the Lawyer's Committee for Civil Rights 
Under Law, Human Rights Watch, the American Civil Liberties Union, the 
Alliance for Justice, and even former Representative Bob Barr, the 
original sponsor of the Defense of Marriage Act. These groups represent 
only a small portion of those firmly opposed to this bill.
  The fact is, this debate is not about supporting or opposing gay 
marriage. Rather, it is about the cost of passing a bill that would 
result in the revocation of constitutional rights for certain 
Americans. This bill is a drastic, misguided piece of legislation with 
strictly political aims, and if this bill passes, it will be a tragic 
day for democracy. I strongly urge my colleagues on both sides of the 
aisle to vote against this bill, and to preserve the constitutional 
rights of all Americans.
  Mr. MEEHAN. Mr. Speaker, I rise in strong opposition to the so-called 
Marriage Protection Act, which has nothing to do with protecting 
marriage.
   This bill is nothing more than the latest Republican attempt to 
divide Americans and distract us from issues that people care about. It 
is about singling out one group of Americans for unequal justice under 
law.
   Constitutionally, this bill is a non-starter. The Constitution 
established an independent judiciary to protect every citizen's rights 
and to check the power of Congress and the executive. Courts exist to 
protect the rights of all Americans, even those who are often 
disenfranchised and marginalized.
   Unable to amend the Constitution to their liking, the Republican 
majority is now waging an unprecedented assault on the independence of 
the judiciary and the separation of powers in our government. If 
Congress strips the courts of jurisdiction over the Defense of Marriage 
Act, there is no telling what other issues will be subject to court 
stripping.
   All of us in Congress took an oath to defend the Constitution. This 
bill is an attack on our most basic constitutional principles--and just 
as important, a mean-spirited attack on our country's values of 
fairness, tolerance, and equality.
   Earlier this week, the Speaker asserted that Congress doesn't have 
time this year to implement the recommendations of the 9/11 
Commission--urgent measures to protect our security. So why are we here 
today using our time to divide people for political reasons? Let's 
reject this cynical political ploy and move on to the real business of 
the American people.
  Ms. HARMAN. Mr. Speaker, in July of 1996, I stood on the House Floor 
and spoke in opposition to the Defense of Marriage Act. Eight years 
later, here I am again, standing in opposition to another attempt to 
divide this nation in an election year and ostracize some of our 
citizens. Only this time, we're going even further. This time, we are 
considering legislation that would, for the first time in our Nation's 
history, seek to exclude a specific group of people from access to the 
federal court system.
  The fact that we are having this debate at this time is as shameful 
as the debate itself. Our Nation faces many pressing and critical 
problems: the size of the Federal deficit and its effect on our 
international competitiveness; threats from rogue nations and 
terrorists; and an intelligence system that is in desperate need of 
repair, to name a few. Yet, rather than focusing our energy on 
protecting our citizens, Congress is debating of a resolution that 
would take away the rights of some Americans.
  There are three really good reasons to vote against H.R. 3313. It's 
unconstitutional, it discriminates against some Americans, and, for 
those of you who supported DOMA, it will muddle the definition of 
marriage and undermine the stated intent of DOMA.
  Eight years ago, I warned that the Defense of Marriage Act was an 
unconstitutional solution in search of a problem. With the measure we 
are considering today, my colleagues on the other side of the aisle 
have out-done themselves. H.R. 3313 is the mother of all 
unconstitutional legislation.
  The bill strips the U.S. Supreme Court's original jurisdiction over 
cases where a state is a party in a DOMA dispute. Original jurisdiction 
is conferred on the Supreme Court by the Constitution, not by Congress.
  Second, this bill is overtly discriminatory. If it were enacted into 
law, Congress would, for the first time in U.S. history, block a 
specific group of Americans--same sex couples and their children--from 
having full access to the federal court system. It is unconscionable 
that we would even consider legislation to deny ANY American the right 
to seek justice through our federal court system.
  Finally, we were told that the intent of DOMA was to preserve the 
traditional definition of marriage. Now we are considering legislation 
that would make each of the 50 state supreme courts the final authority 
on the constitutionality of DOMA. This will create a patchwork of state 
laws on the recognition of marriage, and muddle its definition. Those 
who support this bill can no longer hide behind the states' rights or 
the marriage preservation arguments. This measure reveals the clear 
intent of its drafters--to deny certain individuals equal treatment 
under the law.
  I urge my colleagues to stand up and reject this divisive, untimely, 
and likely unconstitutional bill.
   Mr. SAM JOHNSON of Texas. Mr. Speaker, I rise in strong support of 
H.R. 3313, the Marriage Protection Act. You know it's sad that we're 
even having this debate. However we are being forced to. Marriage and 
the American family are under attack by activist groups and they're 
using wayward judges to chip away at this sacred institution. For the 
sake of our country, Congress must respond.
   This bill would prevent federal courts from forcing states like 
Texas to recognize same-sex marriages licensed in another state.
   Well in Texas, the people have spoken. We have a Defense of Marriage 
Act on the books. The lone star state only recognizes marriage between 
a man and a woman, regardless of what other states might do.
   However, in light of recent events in Massachusetts and elsewhere, 
it has become necessary to ensure that the will of the people of Texas 
isn't circumvented by some unelected judge. And one of the remedies to 
abuses by federal judges lies in Congress' authority to limit federal 
court jurisdiction.
   Congress shouldn't be afraid to properly exercise checks and 
balances provided for in the Constitution. It is our responsibility to 
prevent overreaching by the courts. We've got to reign in these zealous 
judges who think they can legislate.
   Back home we have a popular slogan, ``Don't mess with Texas.'' Well 
I've got one for this debate, ``Don't mess with marriage!''
  Mr. MORAN of Virginia. Mr. Speaker, I rise today in opposition to the 
so-called ``Marriage Protection Act.''
  How marriage is being protected by keeping committed gay and lesbian 
couples from getting married does not make sense to me. Will it 
strengthen heterosexual relationships? Reduce promiscuity and unwed 
pregnancy? Instruct people on the importance of communication to a 
successful relationship?
  No, it would do none of these things.
  What it would do is take away Americans right to Due Process and 
represent a radical departure from our Constitutional and legal 
tradition in an effort to single out a specific group of American 
citizens for discrimination. This bill would strip our federal court 
system of its independence, setting a dangerous precedent and 
threatening the underpinnings of our free and democratic society.
  The Marriage Protection Act precludes federal courts from reviewing 
the constitutionality of the cross-state recognition section of ``the 
Defense of Marriage Act.''
   The result of this legislation would be that if DOMA is challenged, 
the 50 State Supreme Courts would each issue a separate and final 
ruling on the cross-state recognition section of DOMA. The Supreme 
Court, whose job is to settle conflicting or contradictory state and 
federal court rulings, would have its hands tied, thus thwarting their 
ability to resolve the ensuing confusion. What a mess.
  If we decide to wall off the federal courts ability to rule on this 
issue, where will such actions stop? One can easily foresee a number of 
other hot button social issues with which this country is clearly 
divided being blocked in a similar fashion from consideration at the 
federal level.
  Furthermore, we already have sufficient legislation to allow 
individual states the ability to retain and structure marriage laws the 
way they see fit. While I opposed and continue to oppose the Defense of 
Marriage Act (DOMA) which passed the House back in 1996, this law is 
still fully functional and in effect. Since then, it has not been 
invalidated by any court anywhere in the country.

[[Page H6609]]

  Mr. Speaker, I am troubled that we are wasting floor time to discuss 
this issue today. At a time when there are many more pressing matters 
needing to be discussed and deserving of debate, we are considering 
``The Marriage Protection Act,'' a classic example of an election year 
wedge issue designed for maximum political impact. I implore the House 
to consider the full implications of this legislation and urge its 
defeat.
  Mr. HONDA. Mr. Speaker, I rise today in strong opposition of the 
measure before us, H.R. 3313.
  Many of my colleagues on this side of the aisle are lawyers by 
training and they have given us an excellent analysis of the legal 
problems with this bill.
  They have pointed out that by denying the Supreme Court its role as 
the final authority on the constitutionality of federal laws, the bill 
unnecessarily and unconstitutionally usurps the Supreme Court's power.
  Mr. Speaker, I am not a lawyer. I am a teacher by training and even 
without the benefit of legal training, I can see the unfairness of this 
court stripping bill.
  What this bill is trying to do is change the rules of the game, only 
in this case the rules we are talking about are fundamental principles 
imbedded in our Constitution.
  If I were to ask a class of elementary school kids whether they 
thought it was fair to change the rules so that a federal law, passed 
by Congress and signed by the President did not have to face the 
scrutiny of our federal courts--they would all be scratching their 
heads. They would ask me, ``what about the idea of checks and 
balances?''
  If I mentioned this scenario to some Junior High students they would 
simply say, ``we see what you are doing, you're rigging the system.'' 
Teens can be a lot more cynical.
  Mr. Speaker, this is not a matter of protecting marriage, it's about 
protecting the sanctity of separation of powers--and you don't have to 
be a lawyer to see that.
  Mr. STUPAK. Mr. Speaker, I take very seriously my oath of office to 
the U.S. House of Representatives.
  In it, I swear to ``always protect and defend the Constitution of the 
United States . . . so help me God.''
  I will be doing just that when I vote against H.R. 3313. This bill, 
which strips the courts of their right--and obligation--to hear 
challenges to federal law, is a direct attack on our U.S. Constitution.
  I have long been a supporter of the Defense of Marriage Act that 
Congress passed in 1996.-I believe that marriage should be defined as a 
union between a man and woman.
  Despite my support for DOMA--we cannot as Members of Congress, 
knowingly vote for legislation that undermines the clearly stated 
separation of powers between the three branches of government as 
outlined in the Constitution. This separation of power between the 
legislative, executive and judicial branches serves as the foundation 
of our democracy and our system of government.
  If we fail today to ``support and defend'' the Constitution, what's 
next? This legislation sets a terrible precedent!
  Will Congress prevent the federal courts, including the Supreme 
Court, from interpreting civil rights, worker or religious rights laws? 
Will the courts next be blocked from reviewing actions of the executive 
branch?
  Do we really want to head in a direction where the Constitution and 
courts reflect only on the political views of the political party that 
controls the U.S. House, Senate and the Presidency?
  I will not use my constituents' vote in the U.S. House of 
Representatives to undermine our Constitution for blatant election-year 
politics. And election-year politics is the only reason why this 
misguided legislation is on the floor. It is truly shameful, as this 
legislation undermines the integrity and the moral authority of this 
legislative body to the American people.
  Vote ``no'' on H.R. 3313.
  Mr. WELDON of Florida. Mr. Speaker, I support H.R. 3313, The Marriage 
Protection Act. This bill prevents unelected, lifetime-appointed 
federal judges from striking down the provision of the Defense of 
Marriage Act. The Defense of Marriage Act overwhelmingly passed in the 
House and the Senate and was signed into law by President Clinton in 
1996.
  H.R. 3313 simply provides that cases involving the section of Defense 
of Marriage Act--that protects states' rights--must be brought in state 
court. This brings valuable protection to the states and ensures that 
one state does not have to recognize a same sex marriage granted by 
another state.
  It also keeps federal courts from forcing states to recognize same-
sex marriages that other states, such as Massachusetts, have legalized.
  This bill is a good first step, but what is ultimately needed in 
order to protect time-honored, traditional marriage is an Amendment to 
the U.S. Constitution. Unfortunately, the Senate failed to pass this 
amendment last week. That vote was 48 to 50, with Senators John Kerry 
and John Edwards failing to vote. It fell short of the number needed to 
ensure passage so that the American people could consider a 
Constitutional Amendment.
  My constituents in Florida, and the majority of the American people, 
do not agree with a hand full of activist judges and courts that are 
redefining marriage in America. They do not agree with the demands of 
four unelected members of Massachusetts State Supreme Court who have 
overturned the laws of the State of Massachusetts and sanctioned same 
sex marriages.
  A family headed by a mother and a father has been a basic building 
block of society for thousands of years, and it is imperative that its 
integrity be successfully protected from those who wish to re-define 
marriage by trying to equate other relationships to that of traditional 
marriage between one man and one woman.
  Mr. Speaker, I urge passage of H.R. 3313.
  Mr. PAUL. Mr. Speaker, as an original cosponsor of the Marriage 
Protection Act (H.R. 3313), I urge all my colleagues to support this 
bill. H.R. 3313 ensures federal courts will not undermine any state's 
laws regulating marriage by forcing a state to recognize same-sex 
marriage licenses issued in another state. The Marriage Protection Act 
thus ensures that the authority to regulate marriage remains with 
individual states and communities, which is what the drafters of the 
Constitution intended.
  The practice of judicial activism--legislating from the bench--is now 
standard procedure for many federal judges. They dismiss the doctrine 
of strict construction as outdated and, instead, treat the Constitution 
as fluid and malleable to create a desired outcome in any given case. 
For judges who see themselves as social activists, their vision of 
justice is more important than the letter of the law they are sworn to 
interpret and uphold. With the federal judiciary focused more on 
promoting a social agenda than on upholding the rule of law, Americans 
find themselves increasingly governed by judges they did not elect and 
cannot remove from office.
  Consider the Lawrence case decided by the Supreme Court last June. 
The Court determined that Texas has no right to establish its own 
standards for private sexual conduct, because these laws violated the 
court's interpretation of the 14th Amendment. Regardless of the 
advisability of such laws, the Constitution does not give the federal 
government the authority to overturn these laws. Under the Tenth 
Amendment, the State of Texas has the authority to pass laws concerning 
social matters, using its own local standards, without federal 
interference. But, rather than adhering to the Constitution and 
declining jurisdiction over a state matter, the Court decided to 
stretch the ``right to privacy'' to justify imposing the justices' 
vision on the people of Texas.
  Since the Lawrence decision, many Americans have expressed their 
concern that the Court may next ``discover'' that state laws defining 
marriage violate the Court's wrongheaded interpretation of the 
Constitution. After all, some judges may simply view this result as 
taking the Lawrence decision to its logical conclusion.
  One way federal courts may impose a redefinition of marriage on the 
states is by interpreting the full faith and credit clause to require 
all states, even those which do not grant legal standing to same-sex 
marriages, to treat as valid a same-sex marriage licenses from the few 
states which give legal status to such unions as valid. This would have 
the practical effect of nullifying state laws defining marriage as 
solely between a man and a woman, thus allowing a few states and a 
handful of federal judges to create marriage policy for the entire 
nation.
  In 1996, Congress, exercised its authority under the full faith and 
credit clause of Article IV of the United States Constitution by 
passing the Defense of Marriage Act that ensured each state could set 
its own policy regarding marriage and not be forced to adopt the 
marriage policies of another state. Since the full faith and credit 
clause grants Congress the clear authority to ``prescribe the effects'' 
that state documents such as marriage licenses have on other states, 
the Defense of Marriage Act is unquestionably constitutional. However, 
the lack of respect federal judges show for the plain language of the 
Constitution necessitates congressional action to ensure state 
officials are not forced to recognize another state's same-sex marriage 
licenses because of a flawed judicial interpretation of the full faith 
and credit clause. The drafters of the Constitution gave Congress the 
power to limit federal jurisdiction to provide a check on out-of-
control federal judges. It is long past time we begin using our 
legitimate authority to protect the states and the people from 
``judicial tyranny.''
  Since the Marriage Protection Act only requires a majority vote in 
both houses of Congress and the President's signature to become law, it 
is a more practical way to deal with this issue than the time-consuming 
process of passing a constitutional amendment. In fact, since the 
Defense of Marriage Act overwhelmingly passed both houses, and the 
President

[[Page H6610]]

supports protecting state marriage laws from judicial tyranny, there is 
no reason why the Marriage Protection Act cannot become law this year.
  Some may argue that allowing federal judges to rewrite the definition 
of marriage can result in a victory for individual liberty. This claim 
is flawed. The best guarantor of true liberty is decentralized 
political institutions, while the greatest threat to liberty is 
concentrated power. This is why the Constitution carefully limits the 
power of the federal government over the states. Allowing federal 
judges unfettered discretion to strike down state laws, or force a 
state to conform to the laws of another state, in the name of liberty, 
leads to centralization and loss of liberty.
  While marriage is licensed and otherwise regulated by the states, 
government did not create the institution of marriage. In fact, the 
institution of marriage most likely pre-dates the institution of 
government! Government regulation of marriage is based on state 
recognition of the practices and customs formulated by private 
individuals interacting in civil society. Many people associate their 
wedding day with completing the rituals and other requirements of their 
faith, thus being joined in the eyes of their church, not the day they 
received their marriage license, thus being joined in the eyes of the 
state. Having federal officials, whether judges, bureaucrats, or 
congressmen, impose a new definition of marriage on the people is an 
act of social engineering profoundly hostile to liberty.
  Mr. Speaker, Congress has a constitutional responsibility to stop 
rogue federal judges from using a flawed interpretation of the 
Constitution to rewrite the laws and traditions governing marriage. I 
urge my colleagues to stand against destructive judicial activism and 
for marriage by voting for the Marriage Protection Act.
  Mr. TERRY. Mr. Speaker, I rise today in support of H.R. 3313, the 
Marriage Protection Act. As a cosponsor of this important legislation, 
I thank Chairman Sensenbrenner and the leadership for bringing it to 
the House floor.
  H.R. 3313 prohibits any federal court, including the Supreme Court, 
from hearing challenges to a key provision of the Defense of Marriage 
Act (DOMA), which will preserve the rights of states to not recognize 
same-sex unions permitted in other states. I support this limitation of 
federal court jurisdiction in this area.
  I would like to point out, however, that H.R. 3313 does not address 
the current situation in Nebraska.
  In 2000, seventy percent (70 percent) of Nebraska voters approved a 
state constitutional amendment defining marriage as ``one man, one 
woman''--and barring civil unions or domestic partnerships. The ACLU is 
currently challenging this amendment in federal district court. In a 
preliminary ruling, the federal district judge (Judge Bataillon) 
indicated sympathy with the ACLU's claim.
  As I understand it, H.R. 3313 would not prevent federal courts from 
striking down state provisions, such as the one approved by Nebraska 
voters.
  For that reason, an amendment to the U.S. Constitution may be 
required to further protect state statutes and constitutional 
amendments from challenge in the federal courts. While I will vote for 
this legislation, it is becoming increasingly clear to me and many of 
my colleagues that further action may be required by the Congress to 
protect and defend traditional marriage in America.
   Mr. MEEK of Florida. Mr. Speaker, I rise today to voice strong 
objections to H.R. 3313, the so called Marriage Protection Act. This 
Act prohibits federal courts, including the Supreme Court of the United 
States, from hearing cases on the constitutionality of provisions of 
the Defense of Marriage Act, including those relating to same-sex 
marriage licenses.
  This bill is phony, and it is a sham. The title of the bill itself is 
false advertising. While claiming to ``protect'' marriage, all the bill 
does is strip federal courts of jurisdiction so that they cannot even 
consider whether laws on same-sex marriages are consistent with our 
United States Constitution. For over 200 years, our Constitution has 
defined our nation and protected our rights. It is a document of 
empowerment, not limitation. But the Republican leadership wants to put 
a fence around it and padlock the gate, and they are doing it for 
purely political purposes.
  The United States Congress should not be in the business of stripping 
federal courts of their ability to hear particular cases. Such actions, 
if imposed in the 1960's, could have been used to prevent federal 
courts from hearing voting rights cases. To limit the power of the 
courts like this for purely partisan purposes sets a dangerous 
precedent and is simply intolerable. It would undermine the 
independence of the judicial branch and run contrary to the vision set 
forth by our founding fathers in the Constitution.
  Even for people who, like myself, believe that marriage is between a 
man and a woman, this measure does nothing to strengthen or protect 
those bonds. It seems to me that if a threat exists to marriage, it is 
that too many of them fail. For every two marriages that occurred in 
the 1990s, one ended in divorce. The stresses on marriages today are 
great, but they don't have to do with the jurisdiction of the federal 
courts. This bill does nothing to deal with problems like affordable 
housing, quality education and training, daycare for young children, 
high costs of gasoline, electricity and food, high unemployment rates 
and underemployment, and the lack of health care coverage and other 
benefits that place severe strains on many families.
  Today, the very nature of the typical American family is changing. 
Just as families headed by only one adult were rare only a few decades 
ago but are common today, non-traditional couples are now a widespread 
fact of American society. Nearly 200 Fortune-500 companies and numerous 
municipalities and organizations have already recognized this fact on 
their own and provide benefits to same sex couples. In addition, 
several municipalities have adopted local ordinances prohibiting 
discrimination based on sexual orientation in housing and employment.
  It is simply unfair to deny law-abiding American citizens the 
protections of civil law with respect to taxation, inheritance, 
hospital visits and the like, and it is wrong to shackle the federal 
courts by preventing them from even considering court cases pertaining 
to these matters.
  For these reasons, I urge my colleagues to defeat this bill.
  Mr. HOLT. Mr. Speaker, I rise in opposition to H.R. 3313, which would 
prevent federal courts from hearing cases related to provisions of the 
Defense of Marriage Act (DOMA) that allow states to refuse to recognize 
same-sex marriage licenses issued in other jurisdictions.
  The Constitution--perhaps the greatest invention in history--has been 
the source of our freedom in this great country for more than two 
centuries. The framework of government it established has allowed our 
diverse people to live together, to balance our various interests, and 
to thrive. It has provided each citizen with broad, basic rights.
  The judiciary was designed to be the one branch of the federal 
government that is not influenced or guided by political forces. This 
independent nature enables the judiciary to thoughtfully and 
objectively review laws enacted by the legislative branch to ensure 
that Federal law is in line with the Constitution. Throughout the 
development of our nation, this check has been vital to protecting the 
rights of minorities.
  The legislation that we are considering today is a political measure 
that will threaten this precious system of checks and balances. 
Although the Constitution gives Congress the power to limit the 
jurisdiction of the Federal judiciary and the appellate jurisdiction of 
the Supreme Court, I am certain that the founding fathers did not 
intend for Congress to use this power to change the jurisdiction of the 
courts over a political issue. This legislation will set a dangerous 
precedent that Congress can deny the judicial branch the right to 
review specific pieces of legislation simply because Congress is 
concerned that the judiciary will find the legislation 
unconstitutional. This is a clear misuse of Congressional authority and 
it is a misguided attempt to legislate on a controversial social issue.
  In addition to undermining the authority of the judiciary, H.R. 3313 
would deprive a minority population--gay men and women--of basic 
freedoms. This bill would limit their right to due process by barring 
individuals from challenging the constitutionality of DOMA. Congress 
should not limit an individual's ability to seek redress in the court 
system simply because some Members object to the sexual orientation of 
others.
  And if that is not bad enough, H.R. 3313 would set a pattern that 
would cause unimaginable harm. Today its gay men and women, tomorrow 
laws dealing with any other area would be exempted for judicial review.
  Altering the framework of our government and restricting access to 
the courts is not the appropriate way to resolve a divisive political 
issue. I urge my colleagues to vote against this legislation.
  Mr. JONES of North Carolina. Mr. Speaker, I am here today with my 
colleagues in support of H.R. 3315, the Marriage Protection Act. I 
represent the people of the 3rd Congressional district of North 
Carolina, a district that has asked me to support and protect the 
sanctity of marriage between man and woman. Let me read just a small 
part of a pastoral letter by Bishop Sheridan of Colorado as he explains 
the history behind our tradition of marriage: ``Every civilization 
known to mankind has understood marriage as the union of a man and a 
woman . . . no one can simply redefine marriage to suit a political or 
social agenda. Once again, we must be clear about this matter. The 
future of our world depends upon the

[[Page H6611]]

strength of the family, the basic unit of our society. The future of 
the family depends on the state of marriage.''
  Mr. Hostettler's bill will give states their Constitutional right to 
protect traditional marriage. No state should be forced to recognize a 
same-sex marriage if that state's citizens do not believe in honoring 
such a union. I stand with the majority of the people in the 3rd 
district, the citizens of North Carolina and indeed the majority of all 
Americans when I say that I strongly believe in protecting marriage as 
an exclusive union between one man and one woman.
  I believe the moral future of a our country is dependent upon the 
Judeo-Christian values that make up the foundation of America, and if 
America is to survive as a strong nation it must protect those values. 
This bill is one way Congress can stands up for traditional American 
values.
  I close with a quote from Supreme Court Justice Antonin Scalia in his 
dissent of the 5-4 case of Lawrence v. Texas: ``But persuading one's 
fellow citizens is one thing, and imposing one's views in absence of 
democratic majority will is something else . . . Today's opinion 
dismantles the structure of constitutional law that has permitted a 
distinction to be made between heterosexual and homosexual unions, 
insofar as formal recognition in marriage is concerned.
  Mr. WAXMAN. Mr. Speaker, I staunchly oppose H.R. 3313, the so-called 
``Marriage Protection Act.'' This bill is an attack on our 
Constitution, an insult to the fundamental freedoms of our society, and 
a shameful election year stunt by the Republican party.
  Sadly, although its hard to imagine, this bill is even worse than the 
proposed Federal Marriage Amendment. While I also oppose that 
legislation, and any effort to write discrimination based on sexual 
orientation into our laws, this measure presents an even deeper 
constitutional crisis. What this bill attempts to do is strip the 
federal court system and the Supreme Court of the ability to decide the 
constitutionality of a law. Regardless of the issue in question, this 
bill is a flagrant attack on the basic separation of powers enumerated 
in the constitution and the inherent right of each branch of government 
to have full power over its sphere of jurisdiction.
  Equally troubling is the purpose of the bill--to single out one 
minority group and argue that they do not have the right to be heard in 
court on an issue important to them. The idea that the gay and lesbian 
community somehow doesn't deserve equal protection under the law is an 
affront to the Bill of Rights and its guarantee that all Americans have 
a right to due process.
  It is no secret that the Bush Administration will stop at nothing to 
appeal to its conservative base by discriminating against same-sex 
couples. But it is an embarrassment to our democracy that the 
Republican party would promote these initiatives as a ploy to distract 
from the Administration's far-reaching policy failures. One recent e-
mail newsletter sent on June 7, 2004 by veteran right-wing conservative 
Paul Weyrich openly suggested:
  ``The president has bet the farm on Iraq . . . Given what the 
continued killing has done to the president's standing in the polls 
this far, it is a lead-pipe cinch that as we lead up to the first days 
of November 2004, violence is going to be horrific. . . The only one 
alternative to this situation: change the subject. . . Ninety-nine 
percent of the president's base will unite behind him if he pushed the 
[Federal Marriage] Amendment.''
  I opposed the Defense of Marriage Act when it was considered in the 
House in 1994. Ten years later, I continue to believe that these 
initiatives against gay marriage do nothing to preserve the institution 
of marriage, but serve only to fan the flames of intolerance and 
prejudice. I urge my colleagues to reject this woefully misguided bill 
and its crude objectives.
  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.
  Ms. KILPATRICK. Mr. Speaker, I rise in opposition to House 
consideration of H.R. 3313. My opposition to the bill is based on my 
belief that when I took my congressional oath to uphold and protect the 
United States Constitution

[[Page H6612]]

and the people of America, I pledged to represent and protect all three 
branches of government.
  H.R. 3313 purports to prohibit the Supreme Court from serving as the 
ultimate and final arbiter on legal matters. The legislation is wrongly 
inspired because it reflects the arrogance of its crafters who are 
engaged in exercising excessive legislative authority. H.R. 3313 seeks 
to establish legal precedent that will allow radical ideologues to 
preclude the ability of the Supreme Court to hear cases and render 
decisions, in an effort to limit the Court's judicial authority. The 
consideration of this measure is the initial volley of a frontal 
assault on the Constitution.
  In my consideration of the bill I have continued to be mindful that I 
subscribe to a personal belief that marriage is a sacred relationship 
which is directly related to my strong belief in, and support of 
children. I also believe that children must be protected and supported 
so that they can thrive and replenish the earth. I worry about the 
welfare of our children if the Court's authority is eviscerated. If 
H.R. 3313 is passed, I am afraid that the Supreme Court will be 
stripped of its judicial authority, and ultimately its ability to 
fulfill its mandate to render justice.
  It is against this backdrop that I oppose H.R. 3313. The legislation 
is designed to derail the judicial process and the proponents of the 
bill are trying to justify their efforts by contending that they are 
trying to stop judicial activism. So I rise in strong opposition to 
this bill and I encourage my colleagues on both sides of the political 
aisle to defeat this measure.
   Ms. McCARTHY of Missouri. Mr. Speaker, I rise today in opposition to 
H.R. 3313. This unwise legislation would circumvent the checks and 
balances guaranteed in our Constitution by irreparably altering the 
role of the judicial branch of government. ``The Washington Post'' 
stated in their July 21 editorial: ``This is as wrong as wrong can 
be.''
   In addition to altering the very foundation of our system of 
government, H.R. 3313 attempts to abridge the rights of gays and 
lesbians. Federal courts have played an indispensable role in the 
enforcement of civil rights laws, often being the sole protector of 
minority groups, ensuring they are afforded the freedoms guaranteed to 
all Americans. Enacting this bill would weaken the rights of 
individuals seeking protection from government through the Federal 
courts.
   This bill would take away the right to judicial review established 
in the landmark Marbury v. Madison case of 1803. The 200 year old legal 
precedent set in that case established once and for all that the 
Federal courts have authority over Federal laws.
   The framers of the Constitution intended the balance of power 
between the branches to protect the minority from the tyranny of the 
majority. This legislation is not just about same sex marriage, it's 
about who we are as a country. I urge my colleagues to oppose this 
obstructionist legislation. As members of Congress it is our 
responsibility to protect the Constitution that has served us well for 
more than 200 years and is a model to the world of a government for and 
by the people.
  Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. All time for debate has expired.
  Pursuant to House Resolution 734, the previous question is ordered on 
the bill, as amended.
  The question is on the engrossment and third reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.
  The SPEAKER pro tempore. The question is on the passage of the bill.
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Mr. SENSENBRENNER. Mr. Speaker, I object to the vote on the ground 
that a quorum is not present and make the point of order that a quorum 
is not present.
  The SPEAKER pro tempore. Evidently a quorum is not present.
  The Sergeant at Arms will notify absent Members.
  Pursuant to clause 8 of rule XX, this 15-minute vote on passage of 
H.R. 3313 will be followed by 5-minute votes on suspending the rules 
and passing H.R. 4056; and suspending the rules and adopting H. Res. 
652.
  The vote was taken by electronic device, and there were--yeas 233, 
nays 194, not voting 8, as follows:

                             [Roll No. 410]

                               YEAS--233

     Aderholt
     Akin
     Alexander
     Bachus
     Baker
     Ballenger
     Barrett (SC)
     Bartlett (MD)
     Barton (TX)
     Beauprez
     Berry
     Bilirakis
     Bishop (UT)
     Blackburn
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bonner
     Boozman
     Boucher
     Boyd
     Bradley (NH)
     Brady (TX)
     Brown (SC)
     Brown-Waite, Ginny
     Burgess
     Burns
     Burr
     Burton (IN)
     Buyer
     Calvert
     Camp
     Cannon
     Cantor
     Capito
     Carson (OK)
     Carter
     Chabot
     Chandler
     Chocola
     Coble
     Cole
     Costello
     Cox
     Cramer
     Crane
     Crenshaw
     Cubin
     Culberson
     Cunningham
     Davis (TN)
     Davis, Jo Ann
     Davis, Tom
     Deal (GA)
     DeLay
     DeMint
     Diaz-Balart, L.
     Diaz-Balart, M.
     Doolittle
     Dreier
     Duncan
     Dunn
     Edwards
     Ehlers
     Emerson
     Everett
     Feeney
     Ferguson
     Flake
     Forbes
     Fossella
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Garrett (NJ)
     Gibbons
     Gillmor
     Gingrey
     Goode
     Goodlatte
     Gordon
     Goss
     Granger
     Graves
     Green (WI)
     Gutknecht
     Hall
     Harris
     Hart
     Hastert
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Hensarling
     Herger
     Herseth
     Hobson
     Hoekstra
     Holden
     Hostettler
     Hulshof
     Hunter
     Hyde
     Isakson
     Issa
     Istook
     Jenkins
     John
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Keller
     Kelly
     Kennedy (MN)
     King (IA)
     King (NY)
     Kingston
     Kline
     Knollenberg
     LaHood
     Latham
     LaTourette
     Lewis (CA)
     Lewis (KY)
     Linder
     LoBiondo
     Lucas (KY)
     Lucas (OK)
     Manzullo
     Marshall
     Matheson
     McCotter
     McCrery
     McHugh
     McInnis
     McIntyre
     McKeon
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Moran (KS)
     Murphy
     Musgrave
     Myrick
     Nethercutt
     Neugebauer
     Ney
     Northup
     Norwood
     Nunes
     Nussle
     Osborne
     Otter
     Oxley
     Pearce
     Pence
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pitts
     Platts
     Pombo
     Porter
     Portman
     Pryce (OH)
     Putnam
     Radanovich
     Rahall
     Ramstad
     Regula
     Rehberg
     Renzi
     Reynolds
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ross
     Royce
     Ryan (WI)
     Ryun (KS)
     Sandlin
     Saxton
     Schrock
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Sherwood
     Shimkus
     Shuster
     Simpson
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Souder
     Stearns
     Stenholm
     Sullivan
     Sweeney
     Tancredo
     Tanner
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Tiahrt
     Tiberi
     Toomey
     Turner (OH)
     Turner (TX)
     Upton
     Vitter
     Walden (OR)
     Walsh
     Wamp
     Weldon (FL)
     Weldon (PA)
     Weller
     Whitfield
     Wicker
     Wilson (NM)
     Wilson (SC)
     Wolf
     Young (AK)
     Young (FL)

                               NAYS--194

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baca
     Baird
     Baldwin
     Bass
     Becerra
     Bell
     Bereuter
     Berkley
     Berman
     Biggert
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Bono
     Boswell
     Brady (PA)
     Brown (OH)
     Brown, Corrine
     Butterfield
     Capps
     Capuano
     Cardin
     Cardoza
     Case
     Castle
     Clay
     Clyburn
     Conyers
     Cooper
     Crowley
     Cummings
     Davis (AL)
     Davis (CA)
     Davis (FL)
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Doggett
     Dooley (CA)
     Doyle
     Emanuel
     Engel
     English
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Foley
     Ford
     Frank (MA)
     Frost
     Gephardt
     Gerlach
     Gilchrest
     Gonzalez
     Green (TX)
     Grijalva
     Gutierrez
     Harman
     Hastings (FL)
     Hill
     Hinchey
     Hinojosa
     Hoeffel
     Holt
     Honda
     Hooley (OR)
     Houghton
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (CT)
     Johnson, E. B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kennedy (RI)
     Kildee
     Kilpatrick
     Kind
     Kleczka
     Kolbe
     Lampson
     Langevin
     Lantos
     Larsen (WA)
     Larson (CT)
     Leach
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Lofgren
     Lynch
     Majette
     Maloney
     Markey
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McCollum
     McDermott
     McGovern
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Michaud
     Millender-McDonald
     Miller (NC)
     Miller, George
     Mollohan
     Moore
     Moran (VA)
     Murtha
     Nadler
     Napolitano
     Neal (MA)
     Oberstar
     Obey
     Olver
     Ortiz
     Ose
     Owens
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Pomeroy
     Price (NC)
     Rangel
     Reyes
     Rodriguez
     Ros-Lehtinen
     Rothman
     Roybal-Allard
     Ruppersberger
     Rush
     Ryan (OH)
     Sabo
     Sanchez, Linda T.
     Sanchez, Loretta
     Sanders
     Schakowsky
     Schiff
     Scott (GA)
     Scott (VA)
     Serrano
     Shays
     Sherman
     Simmons
     Slaughter
     Smith (WA)
     Snyder
     Solis
     Spratt
     Stark
     Strickland
     Stupak
     Tauscher
     Thompson (CA)
     Thompson (MS)
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Van Hollen
     Velazquez
     Visclosky
     Waters
     Watson
     Watt
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu
     Wynn

                             NOT VOTING--8

     Carson (IN)
     Collins
     Greenwood
     Kirk
     Kucinich
     Lowey
     Paul
     Quinn


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (Mr. Gillmor) (during the vote). Members

[[Page H6613]]

are reminded that there are 2 minutes remaining in this vote.

                              {time}  1553

  Mr. LEWIS of Georgia changed his vote from ``yea'' to ``nay.''
  Mr. SANDLIN changed his vote from ``nay'' to ``yea.''
  So the bill was passed.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.

                          ____________________