[Congressional Record Volume 150, Number 105 (Wednesday, September 8, 2004)]
[Extensions of Remarks]
[Pages E1521-E1522]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    MARRIAGE PROTECTION ACT OF 2004

                                 ______
                                 

                               speech of

                           HON. DENNIS MOORE

                               of kansas

                    in the house of representatives

                        Thursday, July 22, 2004

  Mr. MOORE. Mr. Speaker, I rise in opposition to H.R. 3313, which 
would bar federal courts, including the Supreme Court, from hearing 
cases related to provisions in the Defense of Marriage Act [P.L. 104-
199]. Under that law, the definition of marriage as a union between a 
man and a woman extends to all aspects of federal law and prevents 
states from being forced to recognize same-sex marriages from other 
states. In addition to P.L. 104-199, 38 states--including Kansas--have 
adopted laws limiting marriage to a man and a woman. H.R. 3313 would 
not bar state courts from hearing cases related to same sex marriage.
  While Congress has broad authority under Article III of our 
Constitution to regulate the jurisdiction, procedures and remedies 
available in state and federal courts, this power is generally not used 
as a means to affect substantive law. Over the years, various proposals 
have been made--but not enacted--to limit the jurisdiction of federal 
courts to hear cases regarding particular, controversial areas of 
constitutional law, such as school busing, abortion, prayer in school, 
and recitation of the Pledge of Allegiance. Congress' Article III 
authority is generally used to address broad issues of court efficiency 
and resource allocation, rather than to allocate judicial power in a 
way that affects or influences the result in

[[Page E1522]]

cases concerning specific constitutional issues. Limiting the 
jurisdiction of any court for any particular class of cases raises 
questions regarding both the separation of powers doctrine and the 
Equal Protection Clause of our Constitution.
  Additionally, it is not settled doctrine that Congress has the power 
to eliminate Supreme Court review of constitutional questions. As 
President Reagan's first attorney general, William French Smith, noted: 
``The integrity of our system of federal law depends upon a single 
court of last resort having a final say on the resolution of federal 
questions. The ultimate result of depriving the Supreme Court of 
jurisdiction over a class of cases would be that federal law would vary 
in its impact among the inferior courts. State courts could reach 
disparate conclusions on identical questions of law and the Supreme 
Court would not be able to resolve the inevitable conflicts.''

  For all of these reasons, Mr. Speaker, enactment of H.R. 3313 would 
be unwise and quite possibly unconstitutional. I agree with the late 
Senator Barry Goldwater who opposed similar ``court stripping'' bills 
during his Senate service, stating that ``the frontal assault on the 
independence of the Federal courts is a dangerous blow to the 
foundations of a free society.''
  I noted with great interest a letter I recently received from former 
U.S. Representative Bob Barr, who authored the Defense of Marriage Act 
in 1996. In his correspondence to members of the House, dated July 19, 
2004, former Congressman Barr urged the House to defeat H.R. 3313, 
stating that it will ``needlessly set a dangerous precedent for future 
Congresses that might want to protect unconstitutional legislation from 
judicial review. . . . The fundamental protections afforded by the 
Constitution would be rendered meaningless if others follow the path 
set by H.R. 3313.''
  Former Congressman Barr also notes in his letter that, ``where I 
differ with the supporters of H.R. 3313 is in my confidence that the 
Supreme Court will not invalidate DOMA [the Defense of Marriage Act]. 
During the lengthy consideration of DOMA, the House of Representatives 
heard detailed testimony on the constitutionality of DOMA. A parade of 
legal experts--including the Justice Department--determined that DOMA 
is fully constitutional. Although there are a few naysayers and wishful 
thinkers who opined that DOMA is unconstitutional, the overwhelming 
weight of authority was clear that DOMA is constitutional. Based on the 
exhaustive review of these opinions, Congress overwhelmingly passed 
DOMA and it was signed into law by President Clinton. DOMA remains good 
law. It is a sound and valid exercise of congressional authority, 
pursuant to the Full Faith and Credit Clause of the Constitution.''
  Further, former Congressman Barr comments in his letter that 
``because H.R. 3313 does not strip state courts of jurisdiction to hear 
challenges to the cross-state recognition section of DOMA, the result 
will be that each of the 50 state supreme courts will be the final 
authority on the constitutionality of a federal law. The chaotic result 
could be 50 different interpretations reached by state supreme courts, 
with no possibility of the U.S. Supreme Court reversing any incorrect 
interpretation of the federal DOMA. The potential for mischief by these 
courts is obvious. Ironically, I fear an increased likelihood of an 
adverse decision on DOMA's constitutionality if H.R. 3313 becomes 
law.''
  Mr. Speaker, for all of these reasons, H.R. 3313 is neither good law 
nor good policy. My personal belief is that marriage is a union between 
a man and a woman, but that the regulation of marriage should be left 
to the states. Amending the Constitution of the United States is a 
serious matter not to be taken lightly and neither is enactment of 
legislation that would alter the careful balance of power and 
responsibility that the founders of our nation apportioned between the 
three branches of the federal government. I oppose H.R. 3313.

                          ____________________