[House Report 108-614]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     108-614

======================================================================



 
                    MARRIAGE PROTECTION ACT OF 2004

                                _______
                                

 July 19, 2004.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 3313]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred 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, having considered the same, reports favorably 
thereon with an amendment and recommends that the bill as 
amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     3
Hearings.........................................................    19
Committee Consideration..........................................    19
Vote of the Committee............................................    19
Committee Oversight Findings.....................................    21
New Budget Authority and Tax Expenditures........................    21
Congressional Budget Office Cost Estimate........................    22
Performance Goals and Objectives.................................    22
Constitutional Authority Statement...............................    22
Section-by-Section Analysis and Discussion.......................    23
Changes in Existing Law Made by the Bill, as Reported............    23
Markup Transcript................................................    23
Dissenting Views.................................................   145

                             The Amendment

    The amendment is as follows:
    Strike all after the enacting clause and insert the 
following:

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.''.

                          Purpose and Summary

    H.R. 3313 prevents Federal courts from striking down the 
provision of the Defense of Marriage Act (28 U.S.C. Sec. 1738C) 
that provides that no state shall be required to accept a same-
sex marriage license granted in another state.
    H.R. 3313, the Marriage Protection Act, as amended, creates 
a new 28 U.S.C. Sec. 1632 that provides that:

        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 \1\ or this 
        section.
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    \1\ Section 1738C of Title 28 of the United States Code is the 
provision of the Federal Defense of Marriage Act that states ``No 
State, territory, or possession of the United States, or Indian tribe, 
shall be required to give effect to any public act, record, or judicial 
proceeding of any other State, territory, possession, or tribe 
respecting a relationship between persons of the same sex that is 
treated as a marriage under the laws of such other State, territory, 
possession, or tribe, or a right or claim arising from such 
relationship.'' Section 1738C of Title 28 of the United States Code was 
passed under Congress's authority under Article IV, section 1, of the 
Constitution, known as the ``Full Faith and Credit Clause.'' That 
clause provides that ``Full Faith and Credit shall 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.'' U.S. Const., Art. IV, Sec. 1 (emphasis added).

    H.R. 3313 would prevent unelected, lifetime-appointed 
Federal judges from striking down the protection for states 
Congress passed in the Defense of Marriage Act (``DOMA'')--by 
the overwhelming margin of 342-67 in the House and 85-14 in the 
Senate--that provides that no state shall be required to accept 
same-sex marriage licenses granted in other states.
    H.R. 3313 does not attempt to dictate results: it only 
places final authority over whether states must accept same-sex 
marriage licenses granted in other states in the hands of the 
states themselves. H.R. 3313 stands for the proposition that 
lifetime-appointed Federal judges must not be allowed to 
rewrite marriage policy for the states.

                Background and Need for the Legislation

    H.R. 3313 is necessary to prevent a handful of lifetime-
appointed Federal judges from overturning the considered 
judgment of state citizens and their elected legislatures.
    Currently, Federal judges are poised to overturn state 
marriage laws that rest on the principle that marriage is the 
union of one man and one woman. Yet today, 44 states (so far) 
have enacted laws that provide that marriage shall consist only 
of the union of a man and a woman.\2\ These 44 states 
constitute 88% of the states, and they include 86% of the U.S. 
population.
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    \2\ Thirty-seven states enacted Defense of Marriage Act laws 
following enactment of the Federal DOMA. See Ala. Code Sec. 30-1-19; 
Alaska Stat. Sec. 25.05.013; Ariz. Rev. Stat. Ann. Sec. 25-101; Ark. 
Code Ann. Sec. 9-11-107; Cal. Fam. Code Sec. 308.5; Colo. Rev. Stat. 
Ann. Sec. 14-2-104; Del. Code Ann. Tit. 13, Sec. 101; Fla. Stat. Ann. 
Sec. 741.212; Ga. Code Ann. Sec. 19-3-3.1; Haw. Rev. Stat. Sec. 572-1; 
Idaho Code Sec. 32-209; 750 Ill. Comp. Stat. Ann. 5/212; Ind. Code 
Sec. 31-11-1-1; Iowa Code Sec. 595.2; Kan. Stat. Ann. Sec. 23-101; Ky. 
Rev. Stat. Ann. Sec. 402.040; La. Civ. Code Ann. Art. 89; Md. Code, 
Family Law, Sec. 2-201; Me. Rev. Stat. Ann. Tit. 19-a, Sec. 701; Mich. 
Comp. Laws Ann. Sec. 551.1, .271; Minn. Stat. Ann. Sec. 517.01; Miss. 
Code Ann. Sec. 93-1-1; Mo. Rev. Stat. Sec. 451.022; Mont. Code Ann. 
Sec. 40-1-401; Neb. Const. Art. I, Sec. 29; Nev. Const. Art. I, 
Sec. 21; N.C. Gen. Stat. Sec. 51-1.2; N.D. Cent. Code Sec. 14-03-01; 
Ohio Rev. Code Sec. 3101.01; Okla. Stat. Ann. Tit. 43, Sec. 3.1; 23 Pa. 
Cons. Stat. Ann. Sec. 1704; S.C. Code Ann. Sec. 20-1-15; S.D. Codified 
Laws Sec. 25-1-1; Tenn. Code Ann. Sec. 36-3-113; Tex. Fam. Code Ann. 
Sec. 6.204; Va. Code Ann. Sec. 20-45.2; Wash. Rev. Code Ann. 
Sec. 26.04.020; W. Va. Code Ann. Sec. 48-2-603. An additional six 
states--Connecticut, Maryland, New Hampshire, Utah, Wisconsin, and 
Wyoming--have laws recognizing marriage as the union between a man and 
a woman that predate the enactment of the Federal Defense of Marriage 
Act. See Ct.St. Sec. 45a-727a; Md.Family Sec. 2-201; N.H.St. 
Sec. 457:1-2; Utah Code Ann. Sec. 30-1-2; Wi.St. Sec. 765.01; Wy.St. 
Sec. 20-1-101. Vermont's law, while allowing same-sex civil unions, 
also defines marriage as the union of a man and a woman. See Vt.St. 
T.15 Sec. 8.
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    At least 38 states (so far) specifically reject by statute 
the recognition of same-sex marriage licenses granted out of 
state.\3\ These states enacted such laws in reliance on 28 
U.S.C. Sec. 1738C, the section of DOMA that H.R. 3313 protects 
from Federal interference.
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    \3\ See Ala. Code Sec. 30-1-19; Alaska Stat. Sec. 25.05.013; Ariz. 
R.S. Sec. 25-112; Ark. Code Ann. Sec. 9-11-107; Cal. Fam. Code 
Sec. 308.5; Colo. Rev. Stat. Ann. Sec. 14-2-104; Ct.St. Sec. 45a-727a; 
Del. Code Ann. Tit. 13, Sec. 101; Fla. Stat. Ann. Sec. 741.212; Ga. 
Code Ann. Sec. 19-3-3.1; Hawaii St. Sec. 572-3; Idaho Code Sec. 32-209; 
Ind. Code Sec. 31-11-1-1; Iowa Code Sec. 595.20; Kan. Stat. Ann. 
Sec. 23-101; Ky. Rev. Stat. Ann. Sec. 402.040; La. Civ. Code Ann. Art. 
3520; Md. Code, Family Law, Sec. 2-201; Me. Rev. Stat. Ann. Tit. 19-a, 
Sec. 701; Mich. Comp. Laws Ann. Sec. 551.1, .271; Miss. Code Ann. 
Sec. 93-1-1; Mo. Rev. Stat. Sec. 451.022; Mont. Code Ann. Sec. 40-1-
401; Neb. Const. Art. I, Sec. 29; Nev. Const. Art. I, Sec. 21; 2004 New 
Hampshire Laws Ch. 100 (S.B. 427); N.C. Gen. Stat. Sec. 51-1.2; N.D. 
St. Sec. 14-03-08; Ohio Rev. Code Sec. 3101.01; Okla. Stat. Ann. Tit. 
43, Sec. 3.1; 23 Pa. Cons. Stat. Ann. Sec. 1704; S.C. Code Ann. 
Sec. 20-1-15; Tenn. Code Ann. Sec. 36-3-113; Tex. Fam. Code Ann. 
Sec. 6.204; Utah Code Ann. Sec. 30-1-4; Va. Code Ann. Sec. 20-45.2; 
Wash. Rev. Code Ann. Sec. 26.04.020; W. Va. Code Ann. Sec. 48-2-603.
---------------------------------------------------------------------------
    However, last year the Supreme Court in Lawrence v. Texas 
\4\ struck down a state law criminalizing only same-sex sodomy, 
holding such a law violates the Due Process Clause. In 
Lawrence, the Court held that homosexuals have the right to 
``seek autonomy'' \5\ in their relationships and cited 
``personal decisions relating to marriage'' \6\ as an important 
area of personal autonomy. The Court also held that ``the fact 
that the governing majority in a State has traditionally viewed 
a particular practice as immoral is not a sufficient reason for 
upholding a law prohibiting that practice.'' \7\ The logic of 
Lawrence suggests sexual autonomy may eventually be treated by 
the courts as akin to the right to have an abortion. Justice 
Kennedy, in his opinion for the Court, stated that ``our laws 
and tradition afford constitutional protection to personal 
decisions relating to marriage, procreation, contraception, 
family relationships, child rearing, and education,'' and that 
the Constitution demands respect for ``the autonomy of the 
person in making these choices.'' \8\ The Court then quoted its 
abortion decision in Planned Parenthood v. Casey, stating that 
``[a]t the heart of liberty is the right to define one's own 
concept of existence, of meaning, of the universe, and of the 
mystery of human life.'' \9\
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    \4\ 123 S.Ct. 2472 (2003).
    \5\ Id. at 2482.
    \6\ Id. at 2481.
    \7\ Id. at 2483 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 
(Stevens, J., dissenting)).
    \8\ Id. at 2481.
    \9\ Ibid.
---------------------------------------------------------------------------
    Justice Scalia, in his dissent in Lawrence, pointed out 
that ``[s]tate laws against bigamy, same-sex marriage, adult 
incest, prostitution, masturbation, adultery, fornication, 
bestiality, and obscenity'' are all ``called into question by 
[the Court's Lawrence] decision; the Court makes no effort to 
cabin the scope of its decision to exclude them from its 
holding . . . 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 . . . This case does not 
involve the issue of homosexual marriage only if one entertains 
the belief that principle and logic have nothing to do with the 
decisions of this Court . . .'' \10\
---------------------------------------------------------------------------
    \10\ Id. at 2490, 2498 (Scalia, J., dissenting) (emphasis added).
---------------------------------------------------------------------------
    The Lawrence decision points ominously to a day when the 
Supreme Court may strike down as unconstitutional DOMA's 
provision protecting states from having to recognize same-sex 
marriage licenses granted out-of-state on the grounds that such 
a provision violates either the Due Process Clause, the Equal 
Protection Clause, the Full Faith and Credit Clause, or some 
other constitutional provision.
    To protect state laws that reject the recognition of same-
sex marriage licenses granted in other states from the threats 
posed by Federal court decisions, Congress must exercise its 
constitutional authority to limit the jurisdiction of the 
Federal courts to ensure that the states, and not unelected 
Federal judges, have the final say on whether they must accept 
same-sex marriage licenses issued in other states. Congress 
must preclude Federal courts from striking down the shield 
Congress gave the states to use in rejecting same-sex marriage 
licenses granted in other states before Federal courts strike 
down that protection and set adverse judicial precedents that 
have effects across multiple states and cannot be reversed.

  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 . . .'' \11\ 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:
---------------------------------------------------------------------------
    \11\ XV Thomas Jefferson, Writings of Thomas Jefferson, at 331-32 
(Albert E. Bergh, ed. 1903) (letter from Thomas Jefferson to Charles 
Hammond (Aug. 18, 1821)).

        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.\12\
---------------------------------------------------------------------------
    \12\ XV The Writings of Thomas Jefferson 277-78 (Andrew A. Lipscomb 
and Albert Bergh, eds. 1904) (letter from Thomas Jefferson to William 
C. Jarvis (September 28, 1820)) (emphasis added).

    Jefferson strongly denounced the notion that the Federal 
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.\13\
---------------------------------------------------------------------------
    \13\ XV The Writings of Thomas Jefferson (Albert Bergh, ed. 1903) 
at 213 (letter from Thomas Jefferson to Judge Spencer Roane (September 
6, 1819)).

    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.'' \14\
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    \14\ Abraham Lincoln's First Inaugural Address (March 4, 1861) in 4 
The Collected Works of Abraham Lincoln 268 (Roy P. Basler, ed. 1953).
---------------------------------------------------------------------------

           CONGRESS HAS THE CLEAR AUTHORITY TO PASS H.R. 3313

    A remedy to abuses by Federal judges has long been 
understood to lie, among other places, in Congress's authority 
to limit Federal court jurisdiction. As eminent Federal 
jurisdiction scholar Herbert Wechsler has stated, ``Congress 
has the power by enactment of a statute to strike at what it 
deems judicial excess by delimitations of the jurisdiction of 
the lower courts and of the Supreme Court's appellate 
jurisdiction . . . [E]ven a pending case may be excepted from 
appellate jurisdiction.'' \15\ Indeed, the Supreme Court has 
upheld a statute removing jurisdiction from it in a pending 
case.\16\
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    \15\ Herbert Wechsler, ``The Courts and the Constitution,'' 65 
Colum. L. Rev. 1001, 1005 (1965).
    \16\ See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868).
---------------------------------------------------------------------------
    Regarding the Federal courts below the Supreme Court, 
Article III, Section 1, clause 1 of the Constitution provides 
that ``The judicial Power of the United States, shall be vested 
in one supreme Court, and in such inferior Courts as the 
Congress may from time to time ordain and establish.'' \17\
---------------------------------------------------------------------------
    \17\ This provision of the Constitution makes clear that the 
Constitution itself vests judicial power in the manner prescribed in 
the Constitution, not that the Constitution mandates Congress to vest 
complete jurisdiction in the Federal courts. The Constitution itself 
``vests'' in the Supreme Court only its limited, original jurisdiction 
``[i]n all cases affecting Ambassadors, other public Ministers and 
consuls, and those in which a State shall be Party . . .'' U.S. 
Constitution, Article III, Section 2, clause 2. The word ``shall'' in 
this provision is not addressed to Congress, just as the words 
``shall'' in the constitutional clauses vesting the legislative and 
executive authorities are not addressed to Congress. See U.S. 
Constitution, Article I , Section 1 (``All legislative Powers herein 
granted shall be vested in a Congress of the United States . . .''); 
Article II, Section 1 (``The executive Power shall be vested in a 
President of the United States of America.''). Similarly, where the 
Constitution provides that ``The judicial power shall extend'' to 
certain cases, it can only mean that such power shall extend to such 
cases insofar as either the Constitution vests original jurisdiction in 
the Supreme Court or as the Constitution vests power in Congress to 
create lower Federal courts and Congress has in fact exercised that 
power by statute. See also U.S. Const. Art. I, Sec. 8, clause 9 (``The 
Congress shall have Power . . . To constitute Tribunals inferior to the 
supreme Court.''). See also Richard H. Fallon, Daniel J. Meltzer, and 
David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal 
System (4th ed. 1996) at 348 (``Although Article III states that `the 
judicial Power of the United States shall be vested' (emphasis added), 
Congress possesses significant powers to apportion jurisdiction among 
state and Federal courts and, in doing so, to define and limit the 
jurisdiction of particular courts.'').
---------------------------------------------------------------------------
    Regarding the Supreme Court, the Constitution provides that 
only two types of cases are within the original jurisdiction of 
the Supreme Court.\18\ Article III, Section 2, clause 2 
provides that ``[i]n all cases affecting Ambassadors, other 
public Ministers and Consuls, and those in which a State shall 
be Party, the supreme Court shall have original Jurisdiction. 
In all the other Cases . . . the supreme Court shall have 
appellate Jurisdiction, both as to Law and Fact, with such 
Exceptions, and under such Regulations as the Congress shall 
make.'' \19\
---------------------------------------------------------------------------
    \18\ The Constitution does not grant the Supreme Court exclusive 
original jurisdiction. See California v. Arizona, 440 U.S. 59, 65 
(1979); Illinois v. City of Milwaukee, 406 U.S. 91, 93 (1972); Ohio ex 
rel. Popovici v. Agler, 280 U.S. 379, 383 (1930).
    \19\ Article III, Section 2, clause 2's reference to cases in which 
``a State shall be Party'' does not include suits by citizens against 
states. See United States v. Texas, 143 U.S. 621, 643-44 (1892) (``The 
words in the constitution, `in all cases . . . in which a state shall 
be party, the supreme court shall have original jurisdiction' . . . do 
not refer to suits brought against a state by its own citizens or by 
citizens of other states, or by citizens or subjects of foreign states, 
even where such suits arise under the constitution, laws, and treaties 
of the United States, because the judicial power of the United States 
does not extend to suits of individuals against states.'') (emphasis 
added). The Eleventh Amendment provides that ``The judicial power of 
the United States shall not be construed to extend to any suit in law 
or equity, commenced or prosecuted against one of the United States by 
citizens of another State, or by citizens or subjects of any foreign 
state.'' U.S. Const. Amend. XI.
---------------------------------------------------------------------------
    Consequently, the Constitution provides that the lower 
Federal courts are entirely creatures of Congress, as is the 
appellate jurisdiction of the Supreme Court, excluding only 
``cases affecting Ambassadors, other public Ministers and 
Consuls, and those in which a State shall be Party.'' \20\
---------------------------------------------------------------------------
    \20\ By statute, the original and exclusive jurisdiction of the 
Supreme Court is confined to ``all controversies between two or more 
States.'' 28 U.S.C. Sec. 1251 (``(a) The Supreme Court shall have 
original and exclusive jurisdiction of all controversies between two or 
more States. (b) The Supreme Court shall have original but not 
exclusive jurisdiction of: (1) All actions or proceedings to which 
ambassadors, other public ministers, consuls, or vice consuls of 
foreign states are parties; (2) All controversies between the United 
States and a State; (3) All actions or proceedings by a State against 
the citizens of another State or against aliens.'').
---------------------------------------------------------------------------
    The Founders of our Nation carefully crafted a republic in 
the Constitution. They articulated their defense of that 
document to the voters in the ratifying states in a series of 
newspaper articles that became known as the Federalist Papers.
    In Federalist No. 80, Alexander Hamilton made clear the 
broad nature of Congress's authority to amend Federal court 
jurisdiction to remedy perceived abuse. He wrote:

        From this review of the particular powers of the 
        Federal judiciary, as marked out in the Constitution, 
        it appears that they are all conformable to the 
        principles which ought to have governed the structure 
        of that department, and which were necessary to the 
        perfection of the system. If some partial 
        inconveniences should appear to be connected with the 
        incorporation of any of them into the plan, 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 these inconveniences.\21\
---------------------------------------------------------------------------
    \21\ Federalist No. 80 (Hamilton) at 481 (Clinton Rossiter ed., 
1961). Hamilton elaborated further in Federalist No. 81, stating that 
``We have seen that the original jurisdiction of the Supreme Court 
would be confined to two classes of causes [cases affecting 
ambassadors, ministers, and consuls, and cases in which a State is a 
party], and those of a nature rarely to occur. In all other cases of 
Federal cognizance, the original jurisdiction would appertain to the 
inferior tribunals; and the Supreme Court would have nothing more than 
an appellate jurisdiction, `with such EXCEPTIONS and under such 
REGULATIONS as the Congress shall make.' '' Federalist No. 81 
(Hamilton) at 488 (Clinton Rossiter ed., 1961).

    Alexander Hamilton also wrote in Federalist No. 81 that 
``To avoid all inconveniencies, it will be safest to declare 
generally, that the Supreme Court shall possess appellate 
jurisdiction [that] shall be subject to such EXCEPTIONS and 
regulations as the national legislature may prescribe. This 
will enable the government to modify it in such a manner as 
will best answer the ends of public justice and security.'' 
\22\
---------------------------------------------------------------------------
    \22\ Federalist No. 81 (Hamilton) at 490 (Clinton Rossiter ed., 
1961).
---------------------------------------------------------------------------
    Roger Sherman, whom eminent historian Clinton Rossiter 
considered one of the most influential members of the 
Constitutional Convention,\23\ also wrote that:
---------------------------------------------------------------------------
    \23\ See Clinton Rossiter, 1787: The Grand Convention, chapter 10 
(1966).

        It was thought necessary in order to carry into effect 
        the laws of the Union, to promote justice, and preserve 
        harmony among the states, to extend the judicial powers 
        of the United States to the enumerated cases, under 
        such regulations and with such exceptions as shall be 
        provided for by law, which will doubtless reduce them 
        to cases of such magnitude and importance as cannot 
        safely be trusted to the final decision of the courts 
        of particular states . . .\24\
---------------------------------------------------------------------------
    \24\ Roger Sherman, Observations on the New Federal Constitution (A 
Citizen of New Haven, II) (December 25, 1788) (emphasis added), 
reprinted in Essays on the Constitution of the United States, at 240-41 
(P. Ford, ed. 1892).
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         FROM THE FIRST JUDICIARY ACT OF 1789 TO THE PRESENT, 
CONGRESS'S USE OF ITS AUTHORITY TO LIMIT FEDERAL COURT JURISDICTION HAS 
                     BEEN CONSISTENT AND BIPARTISAN

    Congress has always made clear that it can limit the 
jurisdiction of the Federal courts, starting with the very 
first Judiciary Act of 1789.\25\ As has been observed by the 
authors of the leading treatise on Federal court jurisdiction, 
``the first Judiciary Act is widely viewed as an indicator of 
the original understanding of Article III and, in particular, 
of Congress's constitutional obligations concerning the vesting 
of Federal jurisdiction.'' \26\
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    \25\ 1 Stat. 85.
    \26\ Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, 
Hart & Wechsler's The Federal Courts and the Federal System (4th ed. 
1996) at 28.
---------------------------------------------------------------------------
    The first Congress made clear that Federal court 
jurisdiction over constitutional claims was not unlimited. As 
the Congressional Research Service has written:

        There is significant historical precedent . . . for the 
        proposition that there is no requirement that all 
        jurisdiction that could be vested in the Federal courts 
        should be so vested. For instance, the First Judiciary 
        Act implemented under the Constitution, the Judiciary 
        Act of 1789, is considered to be an indicator of the 
        original understanding of the Article III powers. That 
        Act, however, falls short of having implemented all of 
        the ``judicial powers'' which were specified under 
        Article III. For instance, the Act did not provide 
        jurisdiction for the inferior Federal courts to 
        consider cases arising under Federal law or the 
        Constitution. Although the Supreme Court's appellate 
        jurisdiction did extend to such cases when they 
        originated in state courts, its review was limited to 
        where a claimed statutory or constitutional right had 
        been denied by the court below.\27\
---------------------------------------------------------------------------
    \27\ Kenneth Thomas, Congressional Research Service, CRS Report for 
Congress, ``Limiting Court Jurisdiction Over Federal Constitutional 
Issues: `Court-Stripping' '' (updated May 19, 2004) at 7.

    The Judiciary Act of 1789 \28\ provided that the Supreme 
Court, regarding constitutional challenges to Federal law, 
could review only those final decisions of the state courts 
that held ``against [the] validity'' of a Federal statute or 
treaty.\29\ Consequently, under the Judiciary Act of 1789, if 
the highest state court held a Federal law constitutional, no 
appeal was allowed to any Federal court, including the Supreme 
Court. The Supreme Court dismissed a case early in its history 
under such provision.\30\ (The Judiciary Act of 1789 did not 
provide jurisdiction to the lower Federal courts to consider 
cases arising under Federal law or the Constitution.) \31\ As 
one commentator has written, ``Under the Judiciary Act of 1789, 
cases could arise that clearly fall within the judicial power 
of the United States but that were excluded from the combined 
appellate and original jurisdiction of the Federal courts,'' 
including cases in which a state court erroneously voided a 
state statute for violating the Federal constitution.\32\ In 
sum, ``the first Congress's allocation of jurisdiction in the 
Judiciary Act is inconsistent with the thesis that the 
Constitution requires the entire judicial power of the United 
States to be vested in the aggregate in the Supreme Court and 
lower Federal courts.'' \33\
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    \28\ 1 Stat. 85.
    \29\ See Martin v. Hunter's Lessee, 14 U.S. 304, 352 (1816).
    \30\ See Gordon v. Caldcleugh, 7 U.S. 268 (1806).
    \31\ See Richard H. Fallon, Daniel J. Meltzer, and David L. 
Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 
(4th ed. 1996) at 29 (``[T]he 1789 Act . . . made no use of the grant 
of judicial power over cases arising under the Constitution or laws of 
the United States . . . In the category of cases arising under Federal 
law, Congress provided no general Federal question jurisdiction in the 
lower Federal courts. Nor, under section 25, did the Supreme Court's 
appellate jurisdiction extend to cases originating in the state courts 
in which the Federal claim was upheld.'') (emphasis in original).
    \32\ William R. Casto, ``The First Congress's Understanding of Its 
Authority Over the Federal Courts' Jurisdiction,'' 26 B.C.L. Rev. 1101, 
1118 (1985).
    \33\ Id. at 1120 (emphasis added).
---------------------------------------------------------------------------
    In the first Congress, fifty-four members had been 
delegates to the Constitutional Convention or their state 
ratification conventions.\34\ That same Congress overwhelmingly 
voted to place significant restrictions on Federal court 
jurisdiction that prevented many constitutional and other 
claims from ever being heard in a Federal court. James Madison, 
for example, spoke in favor of the Judiciary Act of 1789 during 
House debate on the legislation,\35\ and at the conclusion of 
the debate he gave the legislation his endorsement.\36\ 
Although there is no rollcall vote on passage of the Judiciary 
Act of 1789 in the House recorded in the Congressional 
Record,\37\ the Judiciary Act of 1789 passed the Senate by a 
vote of 14-6, with eight of the ten former delegates to the 
Constitutional Convention voting for it.\38\
---------------------------------------------------------------------------
    \34\ Encyclopedia of American History 145 (R. Morris 6th ed. 1982).
    \35\ See 1 Annals of Congress 812-13 (J. Gales ed. 1789).
    \36\ See Gazette of the United States (September 19, 1789) at 3, 
col. 2.
    \37\ See I Debates and Proceedings in the Congress of the United 
States at 928-29 (Thursday, September 17, 1789) (``The bill for 
establishing the Judicial Courts of the United States was read the 
third time and passed.'').
    \38\ See I Debates and Proceedings in the Congress of the United 
States at 52 (Friday, July 17, 1789) (Bassett, Ellsworth, Few, Johnson, 
Morris, Paterson, Read, and Strong voting for, Butler and Langdon 
voting against). While one cannot know from such votes whether those 
voting against it did so because they believed it was unconstitutional, 
surely no one who voted for it did so believing it was 
unconstitutional.
---------------------------------------------------------------------------
    Shortly after the Judiciary Act of 1789 became law, 
Congress asked Edmund Randolph, the first Attorney General of 
the United States, to submit a report and recommendation on 
``matters relative to the administration of justice under the 
authority of the United States.'' \39\ In that report, Attorney 
General Randolph recommended that the Judiciary Act of 1789 be 
amended such that even more cases within the judicial power of 
the United States be prohibited from being filed in Federal 
court and from being appealed to a Federal court, citing the 
broad authority the Constitution granted Congress to limit 
Federal court jurisdiction.\40\ Indeed, as a leading treatise 
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.'' \41\
---------------------------------------------------------------------------
    \39\ 2 Annals of Congress 1719 (1790).
    \40\ See William R. Casto, ``The First Congress's Understanding of 
Its Authority Over the Federal Courts' Jurisdiction,'' 26 B.C.L. Rev. 
1101, 1122 (1985).
    \41\ Richard H. Fallon, Daniel J. Meltzer, and David L. Shapiro, 
Hart & Wechsler's The Federal Courts and the Federal System (4th ed. 
1996) at 349. Such less-than-full vesting includes statutes that 
preclude Federal review of diversity cases in which the amounts in 
controversy are below statutorily defined minimums. Id. Further, the 
law has generally developed in a variety of additional ways that make 
clear there are many types of cases in which not only are Federal 
courts precluded from conducting constitutional review, but all 
constitutional review is precluded. For example, the Supreme Court has 
found constitutional claims to be beyond judicial review because they 
involve ``political questions.'' See Coleman v. Miller, 307 U.S. 433, 
443-46 (1939); Ohio ex rel. Bryant v. Akron Metropolitan Park District, 
281 U.S. 74, 79-80 (1930). And the doctrine of sovereign immunity 
provides that additional constitutional claims can go unheard. See 
Black's Law Dictionary (8th ed. 2004) (``A government's immunity from 
being sued in its own courts without its consent'').
---------------------------------------------------------------------------
    On both sides of the political spectrum, calls have been 
made to limit the jurisdiction of Federal courts to avoid 
abuses. Senate Minority Leader Daschle has supported provisions 
that would deny all Federal courts jurisdiction over the 
procedures governing timber projects in order to expedite 
forest clearing and save forests from destruction.\42\ Those 
provisions became part of Public Law 107-206.\43\ If Congress 
can deny all Federal courts the authority to hear a class of 
cases to protect trees, certainly it can do so to protect a 
state's marriage policy.\44\
---------------------------------------------------------------------------
    \42\ See Audrey Hudson, ``Daschle Seeks to Exempt His State; Wants 
Logging to Prevent Fires,'' The Washington Times (July 24, 2002) at A1 
(`` `As we have seen in the last several weeks, the fire danger in the 
Black Hills is high and we need to get crews on the ground as soon as 
possible to reduce this risk and protect property and lives,' Mr. 
Daschle said in a statement late Monday night after a House-Senate 
conference committee agreed on the language . . . The provision says 
that `due to extraordinary circumstances,' timber activities will be 
exempt from the National Forest Management Act and National 
Environmental Policy Act, is not subject to notice, comment or appeal 
requirements under the Appeals Reform Act, and is not subject to 
judicial review by any U.S. court.''); Michelle Munn, ``Plan to Curb 
Forest Fires Wins Support,'' The Los Angeles Times (August 2, 2002) at 
A16 (``Daschle's amendment authorizes a forest management program in 
Black Hills National Forest without resort to a typically lengthy 
judicial review and appeals process.'').
    \43\ See Pub. L. No. 107-206, Sec. 706(j) (``Any action authorized 
by this section shall not be subject to judicial review by any court of 
the United States.''). This provision was addressed by the Tenth 
Circuit Court of Appeals in Biodiversity Associates v. Cables, 357 F.3d 
1152 (10th Cir. 2004), but only to determine whether that provision 
conflicted with a settlement agreement between the Clinton 
Administration and plaintiffs in the case under which it agreed not to 
allow any tree cutting in the Beaver Park Roadless Area. Id. at 1158, 
1160 (``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 question before us is simply whether the settlement 
agreement has continuing validity in the face of Congress's intervening 
act.'').
    \44\ Congress has often acted to preclude judicial review in 
Federal courts in selected cases. For example, the Terrorism Risk 
Insurance Act (P.L. 107-297) precludes judicial review of 
``certifications'' by the Secretary of the Treasury that terrorist 
events have occurred, and the Small Business Liability Relief and 
Brownfields Revitalization Act (P.L. 107-118) precludes judicial review 
of hazardous waste cleanup programs.
---------------------------------------------------------------------------
    Democratic Senator Robert Byrd also introduced an 
amendment, Amendment SU 70, to S. 450 during the 96th Congress. 
The amendment, which was adopted by a Senate controlled by 
Democrats with large bipartisan support,\45\ provided that 
neither the lower Federal courts nor the Supreme Court would 
have jurisdiction to review any case arising out of state laws 
relating to voluntary prayers in public schools and public 
buildings.
---------------------------------------------------------------------------
    \45\ See Congressional Quarterly, Congressional rollcall 1979, at 
10-S (``R 25-12; D 26-28 '').
---------------------------------------------------------------------------
    Further, conservative commentator William F. Buckley has 
advocated that ``[a] means of devolving popular authority, to 
be exercised by individual states, could be obtained by 
removing jurisdiction from the Supreme Court in matters having 
to do with marriage.'' \46\
---------------------------------------------------------------------------
    \46\ William F. Buckley, ``Alternatives on Marriage,'' The 
Washington Times (March 2, 2004).
---------------------------------------------------------------------------
    And there are currently 224 bipartisan co-sponsors of H.R. 
2028, the ``Pledge Protection Act of 2003,'' which would 
provide that ``No court established by Act of Congress shall 
have jurisdiction to hear or determine any claim that the 
recitation of the Pledge of Allegiance . . . violates the first 
article of amendment to the Constitution of the United 
States.''

 SUPREME COURT PRECEDENTS ARE CONSISTENT WITH CONGRESS'S AUTHORITY TO 
                    LIMIT FEDERAL COURT JURISDICTION

    Supreme Court precedents upholding a variety of statutes 
limiting Federal court jurisdiction make clear that Congress 
has the authority to remove jurisdiction over legal issues from 
Federal courts including the Supreme Court.
    In Wiscart v. D'Auchy,\47\ Chief Justice Ellsworth, who has 
been a delegate to the Constitutional Convention, upheld a 
denial of Supreme Court jurisdiction, stating broadly that the 
Supreme Court's
---------------------------------------------------------------------------
    \47\ 3 U.S. (3 Dall.) 321 (1796).

        appellate jurisdiction is, likewise, qualified; 
        inasmuch as it is given ``with such exceptions, and 
        under such regulations, as the Congress shall make.'' 
        Here then, is the ground, and the only ground, on which 
        we can sustain an appeal. If Congress has provided no 
        rule to regulate our proceedings, we cannot exercise an 
        appellate jurisdiction; and if the rule is provided, we 
        cannot depart from it. The question, therefore, on the 
        constitutional point of an appellate jurisdiction, is 
        simply, whether Congress has established any rule for 
        regulating its exercise? \48\
---------------------------------------------------------------------------
    \48\ Id. at 328.

    In Turner v. Bank of North American,\49\ the Supreme Court 
upheld the provision of the Judiciary Act \50\ which provided 
that no district or circuit court ``shall have cognisance of 
any suit to recover the contents of any promissory note, or 
other chose in action, in favor of an assignee, unless a suit 
might have been prosecuted in such court, to recover the said 
contents, if no assignment had been made, except in cases of 
foreign bills of exchange.'' As counsel pointed out, Congress 
had passed the statute to prevent contracts between citizens of 
the same state from, through collusion, being made Federal 
issues under the Federal courts' diversity jurisdiction simply 
because one party assigned the benefits of a promissory note to 
a citizen of another state, or to an alien.\51\ Chief Justice 
Ellsworth, during oral argument, asked the counsel asserting 
jurisdiction incredulously, ``How far is it meant to carry the 
argument? Will it be affirmed, that in every case, to which the 
judicial power of the United States extends, the Federal courts 
may exercise a jurisdiction, without the intervention of the 
legislature, to distribute, and regulate, the power?'' \52\ 
Justice Chase agreed, stating:
---------------------------------------------------------------------------
    \49\ 4 U.S. 8 (1799).
    \50\ 1 U.S. Stat. 79.
    \51\ 4 U.S. at 8 (``Congress knew, that the English courts have 
amplified their jurisdiction, through the medium of legal fictions; and 
it was readily foreseen, that by the means of a colorable assignment to 
an alien, or to the citizen of another state, every controversy arising 
upon negotiable paper might be drawn into the Federal courts.'') 
(citing argument of counsel). See also 10 Annals of Congress, at 897-99 
(1801) (discussing purpose of assignee provision).
    \52\ Id. at 10, n.a. (citing statement of Chief Justice Ellsworth).

        The notion has frequently been entertained, that the 
        Federal courts derive their judicial power immediately 
        from the constitution; but the political truth is that 
        the disposal of the judicial power (except in a few 
        specified instances) belongs to congress. If congress 
        has given the power to this court, we possess it, not 
        otherwise: and if congress has not given the power to 
        us, or to any other court, it still remains at the 
        legislative disposal. Besides, congress is not bound, 
        and it would, perhaps, be inexpedient, to enlarge the 
        jurisdiction of the Federal courts, to every subject, 
        in every form, which the constitution might 
        warrant.\53\
---------------------------------------------------------------------------
    \53\ Id. at 9, n.a. (citing statement of Justice Case).

    In Cary v. Curtis,\54\ the Supreme Court upheld the 
application of a statute that placed jurisdiction for all 
claims of illegally charged customs duties with the Secretary 
of the Treasury. The Court stated that, under the statute, ``it 
is the Secretary of the Treasury alone in whom the rights of 
the government and of the claimant are to be tested.'' \55\ In 
a broad decision, the Court upheld a Federal statute that 
removed jurisdiction over all such claims from both the state 
and Federal courts and dismissed the case for lack of 
jurisdiction:
---------------------------------------------------------------------------
    \54\ 44 U.S. 236 (1845).
    \55\ Id. at 241 (``To permit the receipts at the customs to depend 
on constructions as numerous as are the agents employed, as various as 
might be the designs of those who are interested; or to require that 
those receipts shall await a settlement of every dispute or objection 
that might spring from so many conflicting views, would be greatly to 
disturb, if not to prevent, the uniformity prescribed by the 
Constitution, and by the same means to withhold from the government the 
means of fulfilling its important engagements . . . We have no doubts 
of the objects or the import of that act; we cannot doubt that it . . . 
has made the head of the Treasury Department the tribunal for the 
examination of claims for duties said to have been improperly paid.'').

        It is contended, however, that the language and the 
        purposes of Congress, if really what we hold them to be 
        declared in the statute of 1839, cannot be sustained, 
        because they would be repugnant to the Constitution, 
        inasmuch as they would debar the citizen of his right 
        to resort to the courts of justice . . . [I]n the 
        doctrines so often ruled in this court that the 
        judicial power of the United States, although it has 
        its origin in the Constitution, is (except in 
        enumerated instances, applicable exclusively to this 
        court) dependent for its distribution and organization, 
        and for the modes of its exercise, entirely upon the 
        action of Congress, who possess the sole power of 
        creating the tribunals (inferior to the Supreme Court) 
        for the exercise of the judicial power, and of 
        investing them with jurisdiction either limited, 
        concurrent, or exclusive, and of withholding 
        jurisdiction from them in the exact degrees and 
        character which to Congress may seem proper for the 
        public good. To deny this position would be to elevate 
        the judicial over the legislative branch of the 
        government, and to give to the former powers limited by 
        its own discretion merely. It follows, then, that the 
        courts created by statute must look to the statute as 
        the warrant for their authority, certainly they cannot 
        go beyond the statute, and assert an authority with 
        which they may not be invested by it, or which may be 
        clearly denied to them. This argument is in no wise 
        impaired by admitting that the judicial power shall 
        extend to all cases arising under the Constitution and 
        laws of the United States. Perfectly consistent with 
        such an admission is the truth, that the organization 
        of the judicial power, the definition and distribution 
        of the subjects of jurisdiction in the Federal 
        tribunals, and the modes of their action and authority, 
        have been, and of right must be, the work of the 
        legislature. The existence of the Judicial Act itself, 
        with its several supplements, furnishes proof 
        unanswerable on this point. The courts of the United 
        States are all limited in their nature and 
        constitution, and have not the powers inherent in 
        courts existing by prescription or by the common 
        law.\56\
---------------------------------------------------------------------------
    \56\ Id. at 244-46 (emphasis added).

    In Barry v. Mercein,\57\ the Supreme Court stated that 
``[b]y the Constitution of the United States, the Supreme Court 
possesses no appellate power in any case, unless conferred upon 
it by act of Congress, nor can it, when conferred be exercised 
in any other form, or by any other mode of proceeding than that 
which the law prescribes.'' \58\
---------------------------------------------------------------------------
    \57\ 46 U.S. (5 How.) 103 (1847).
    \58\ Id. at 119.
---------------------------------------------------------------------------
    In Sheldon v. Sill,\59\ the Supreme Court stated:
---------------------------------------------------------------------------
    \59\ 29 U.S. 441 (1850).

        It must be admitted, that if the Constitution had 
        ordained and established the inferior courts, and 
        distributed to them their respective powers, they could 
        not be restricted or divested by Congress. But as it 
        has made no such distribution, one of two consequences 
        must result--either that each inferior court created by 
        Congress must exercise all the judicial powers not 
        given to the Supreme Court, or that Congress, having 
        the power to establish the courts, must define their 
        respective jurisdictions. The first of these inferences 
        has never been asserted, and could not be defended with 
        any show of reason, and if not, the latter would seem 
        to follow as a necessary consequence. And it would seem 
        to follow, also, that, having a right to prescribe, 
        Congress may withhold from any court of its creation 
        jurisdiction of any of the enumerated controversies. 
        Courts created by statute can have no jurisdiction but 
        such as the statute confers. No one of them can assert 
        a just claim to jurisdiction exclusively conferred on 
        another, or withheld from all . . . Such has been the 
        doctrine held by this court since its first 
        establishment. To enumerate all the cases in which it 
        has been either directly advanced or tacitly assumed 
        would be tedious and unnecessary.\60\
---------------------------------------------------------------------------
    \60\ Id. at 448-49.

    In Mayor v. Cooper,\61\ the Supreme Court held that:
---------------------------------------------------------------------------
    \61\ 73 U.S. (6 Wall.) 247 (1868).

        How jurisdiction shall be acquired by the inferior 
        courts, whether it shall be original or appellate, or 
        original in part and appellate in part, and the manner 
        of procedure in its exercise after it has been 
        acquired, are not prescribed. The Constitution is 
        silent upon those subjects. They are remitted without 
        check or limitation to the wisdom of the legislature . 
        . . As regards all courts of the United States inferior 
        to this tribunal, two things are necessary to create 
        jurisdiction, whether original or appellate. The 
        Constitution must have given to the court the capacity 
        to take it, and an act of Congress must have supplied 
        it. Their concurrence is necessary to vest it . . . It 
        is the right and the duty of the national government to 
        have its Constitution and laws interpreted and applied 
        by its own judicial tribunals. In cases arising under 
        them, properly brought before it, this court is the 
        final arbiter.\62\
---------------------------------------------------------------------------
    \62\ Id. at 251-52.

    In United States v. Klein,\63\ the Supreme Court struck 
down a statute that purported to deny the lower U.S. Court of 
Claims and the Supreme Court, on appeal, the authority to hear 
claims for property brought by those who were pardoned by 
President Lincoln following the Civil War. The Supreme Court 
held the statute unconstitutional for two reasons. First, 
because the statute made having received a pardon proof of 
disloyalty that effectively denied the right to Federal 
judicial review, it found that in forbidding the Court ``to 
give the effect to evidence which, in its own judgment, such 
evidence should have'' and directing the court ``to give it an 
affect precisely contrary,'' Congress had ``inadvertently 
passed the limit which separates the legislative from the 
judicial power.'' \64\ Second, the statute unconstitutionally 
``impair[ed] the effect of a pardon, and thus infring[ed] the 
constitutional power of the Executive.'' \65\
---------------------------------------------------------------------------
    \63\ 80 U.S. 128 (1871).
    \64\ Id. at 147.
    \65\ Id.
---------------------------------------------------------------------------
    In the opinion, however, the Supreme Court made clear that 
``[i]t seems to us that this is not an exercise of the 
acknowledged power of Congress to make exceptions and prescribe 
regulations to the appellate power.'' \66\ Further, the Court 
stated that ``If [the challenged statute] simply denied the 
right of appeal in a particular class of cases, there could be 
no doubt that it must be regarded as an exercise of the power 
of Congress to make ``such exceptions from the appellate 
jurisdiction'' as should seem to it expedient. But the language 
of the proviso shows plainly that it does not intend to 
withhold appellate jurisdiction except as a means to an end. 
Its great and controlling purpose is to deny to pardons granted 
by the President the effect which this court had adjudged them 
to have.'' \67\ In other words, the denial of Federal court 
jurisdiction would have been upheld if it had not effectively 
acted to limit the President's constitutional pardon power. 
H.R. 3313 would not conflict with any other constitutional 
authority granted by the Constitution.
---------------------------------------------------------------------------
    \66\ Id. at 146.
    \67\ Id. at 145 (emphasis added).
---------------------------------------------------------------------------
    In The Francis Wright,\68\ the Supreme Court stated:
---------------------------------------------------------------------------
    \68\ 105 U.S. 381 (1881).

        [W]hile the appellate power of this court under the 
        Constitution extends to all cases within the judicial 
        power of the United States, actual jurisdiction under 
        the power is confined within such limits as Congress 
        sees fit to prescribe . . . What those powers shall be, 
        and to what extent they shall be exercised, are, and 
        always have been, proper subjects of legislative 
        control. Authority to limit the jurisdiction 
        necessarily carries with it authority to limit the use 
        of the jurisdiction. Not only may whole classes of 
        cases be kept out of the jurisdiction altogether, but 
        particular classes of questions may be subjected to re-
        examination and review, while others are not.\69\
---------------------------------------------------------------------------
    \69\ The Francis Wright, 105 U.S. 381, 385-86 (1881).

    In Stevenson v. Fain,\70\ the Supreme Court stated that 
``The Supreme Court alone possesses [original] jurisdiction 
derived immediately from the Constitution, and of which the 
legislative power cannot deprive it, but the jurisdiction of 
the circuit courts depends upon some act of Congress.'' \71\
---------------------------------------------------------------------------
    \70\ 195 U.S. 165 (1904).
    \71\ Id. at 167 (quotations and citations omitted).
---------------------------------------------------------------------------
    In Kline v. Burke Construction Co.,\72\ the Supreme Court 
states that:
---------------------------------------------------------------------------
    \72\ 260 U.S. 226 (1922).

        Only the [original] jurisdiction of the Supreme Court 
        is derived directly from the Constitution. Every other 
        court created by the general government derives its 
        jurisdiction wholly from the authority of Congress. 
        That body may give, withhold or restrict such 
        jurisdiction at its discretion, provided it be not 
        extended beyond the boundaries fixed by the 
        Constitution . . . The Constitution simply gives to the 
        inferior courts the capacity to take jurisdiction in 
        the enumerated cases, but it requires an act of 
        Congress to confer it. And the jurisdiction having been 
        conferred may, at the will of Congress, be taken away 
        in whole or in part . . . A right which thus comes into 
        existence only by virtue of an act of Congress, and 
        which may be withdrawn by an act of Congress after its 
        exercise has begun, cannot well be described as a 
        constitutional right.\73\
---------------------------------------------------------------------------
    \73\ Id. at 234.

    In Lauf v. E.G. Shinner & Co.,\74\ the Supreme Court again 
upheld a statute that placed limits on the jurisdiction of the 
lower Federal courts, stating ``the power of the court to grant 
the relief prayed depends upon the jurisdiction conferred upon 
it by the statutes of the United States . . . Section 7 [of the 
Act] declares that `no court of the United States shall have 
jurisdiction to issue a temporary or permanent injunction in 
any case involving or growing out of a labor dispute, as herein 
defined,' [with certain exceptions] . . . There can be no 
question of the power of Congress thus to define and limit the 
jurisdiction of the inferior courts of the United States.''
---------------------------------------------------------------------------
    \74\ 303 U.S. 323 (1938).
---------------------------------------------------------------------------
    In Lockerty v. Phillips,\75\ the Supreme Court similarly 
held, in upholding a statute limiting lower courts' 
jurisdiction over challenges to price controls, that
---------------------------------------------------------------------------
    \75\ 319 U.S. 182 (1943).

        [b]y this statute Congress has seen fit to confer on 
        the Emergency Court (and on the Supreme Court upon 
        review of decisions of the Emergency Court) equity 
        jurisdiction to restrain the enforcement of price 
        orders under the Emergency Price Control Act. At the 
        same time it has withdrawn that jurisdiction from every 
        other Federal and state court. There is nothing in the 
        Constitution which requires Congress to confer equity 
        jurisdiction on any particular inferior Federal court. 
        All Federal courts, other than the Supreme Court, 
        derive their jurisdiction wholly from the exercise of 
        the authority to ``ordain and establish'' inferior 
        courts, conferred on Congress by Article III, Sec. 1, 
        of the Constitution. Article III left Congress free to 
        establish inferior Federal courts or not as it thought 
        appropriate. It could have declined to create any such 
        courts, leaving suitors to the remedies afforded by 
        state courts, with such appellate review by this Court 
        as Congress might prescribe. The Congressional power to 
        ordain and establish inferior courts includes the power 
        of investing them with jurisdiction either limited, 
        concurrent, or exclusive, and of withholding 
        jurisdiction from them in the exact degrees and 
        character which to Congress may seem proper for the 
        public good. In the light of the explicit language of 
        the Constitution and our decisions, it is plain that 
        Congress has power to provide that the equity 
        jurisdiction to restrain enforcement of the Act, or of 
        regulations promulgated under it, be restricted to the 
        Emergency Court, and, upon review of its decisions, to 
        this Court.\76\
---------------------------------------------------------------------------
    \76\ Id. at 187-88 (quotations and citations omitted) (emphasis 
added).

    While some have argued that Federal court jurisdiction is 
necessary to ensure a Federal court exists to decide at least 
constitutional questions, as eminent Federal jurisdiction 
scholar Martin Redish has observed, ``there is no logical way 
to limit the need for an article III court to police the states 
to cases involving assertions of constitutional rights. If the 
state courts are not to be allowed to undermine the 
establishment of national supremacy, surely these courts must 
also be policed on their interpretation and enforcement of any 
Federal law. The supremacy clause, it should be recalled, is 
not limited in its dictates to matters of constitutional law, 
much less of constitutional right.'' \77\
---------------------------------------------------------------------------
    \77\ Martin H. Redish, ``Constitutional Limitations on 
Congressional Power to Control Federal Jurisdiction: A Reaction to 
Professor Sager,'' 77 N.W.U.L.Rev. 143, 148 (1982).
---------------------------------------------------------------------------
    Indeed, the Supreme Court, in a decision this year, 
reaffirmed that ``[t]he whole subject of domestic relations of 
husband and wife, parent and child, belongs to the laws of the 
States and not to the laws of the United States.'' \78\ The 
Supreme Court has also stated that ``domestic relations are 
preeminently matters of state law,'' \79\ and that ``[f]amily 
relations are a traditional area of state concern.'' \80\
---------------------------------------------------------------------------
    \78\ 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)).
    \79\ Mansell v. Mansell, 490 U.S. 581, 587 (1989).
    \80\ Moore v. Sims, 442 U.S. 415, 435 (1979).
---------------------------------------------------------------------------
    Further, H.R. 3313 is entirely consistent with Marbury v. 
Madison. Marbury v. Madison \81\ established the principle of 
judicial review and stands for the proposition that the Supreme 
Court has the final say on the issues it decides provided 
either the issues it decides are within its original 
jurisdiction or Congress, by statute, has granted the Supreme 
Court the authority to hear the issue. If a case does not fall 
within the jurisdiction of the Federal courts because Congress 
has not granted the required jurisdiction, Federal courts 
simply cannot hear the case.
---------------------------------------------------------------------------
    \81\ 5 U.S. 137 (1803). In Marbury v. Madison, the Supreme Court 
found that under Article III of the Constitution, a party within the 
Supreme Court's original jurisdiction must be a State or an ambassador 
and that neither Marbury nor Madison was a state or an ambassador. 
Consequently, the Supreme Court held that the original jurisdiction of 
the Supreme Court is fixed by the Constitution and it dismissed the 
case because Congress had exceeded its constitutional authority when it 
granted the Supreme Court original jurisdiction to hear Marbury's case 
in the Judiciary Act of 1789. Id.
---------------------------------------------------------------------------
    The author of Marbury v. Madison was Chief Justice John 
Marshall, and Chief Justice Marshall himself, after he decided 
Marbury v. Madison, dismissed cases when the Federal courts had 
not been granted jurisdiction by Congress to hear them under 
the Judiciary Act of 1789.\82\
---------------------------------------------------------------------------
    \82\ See Gordon v. Caldcleugh, 7 U.S. 268 (1806) (dismissing case 
for lack of jurisdiction under the Judiciary Act of 1789) (``This court 
has no jurisdiction, under the 25th section of the judiciary act of 
1789, but in a case where a final judgment or decree has been rendered 
in the highest court of law or equity of a state, in which a decision 
in the suit could be had, where is drawn in question, the validity of a 
treaty or statute of, or an authority exercised under the United 
States, and the decision is against their validity, &c. or where is 
drawn in question, the construction of any clause of the constitution, 
or of a treaty, or statute of, or commission held under the United 
States, and the decision is against the title, right, privilege or 
exemption, specially set up or claimed by either party, under such 
clause of the said constitution, treaty, statute or commission. In the 
present case, such of the defendants as were aliens, filed a petition 
to remove the cause to the Federal circuit court, under the 12th 
section of the same act. The state court granted the prayer of the 
petition, and ordered the cause to be removed; the decision, therefore, 
was not against the privilege claimed under the statute; and, 
therefore, this court has no jurisdiction in the case. The writ of 
error must be dismissed.'').
---------------------------------------------------------------------------

STATE COURTS ARE NOT SECOND-CLASS COURTS, AND THEY ARE EQUALLY CAPABLE 
              OF DECIDING FEDERAL CONSTITUTIONAL QUESTIONS

    Federal legislation that precludes Federal court 
jurisdiction over certain constitutional claims to remedy 
perceived abuses by Federal judges, and to preserve for the 
states and their courts the authority to determine 
constitutional issues, rests comfortably within our 
constitutional system.\83\
---------------------------------------------------------------------------
    \83\ As Martin Redish has observed, the Founders did not intend to 
guarantee a Federal judiciary to ensure uniformity of Federal policy, 
but rather they intended to allow Congress the option of creating and 
granting jurisdiction to Federal courts if Congress thought such was 
necessary to police actions by state courts:

      [The Founders'] fear seems to have been that, absent 
      policing by some branch of the Federal Government, state 
      courts might undermine Federal supremacy. Ultimately, the 
      framers chose the judicial branch to perform this policing 
      function. But if the policy-making branches of the Federal 
      Government--Congress and the executive--conclude in a 
      particular instance that there is no need to worry about 
      state court interference, there is, by definition, no 
      possibility of interference with Federal supremacy; the 
      Federal Government has chosen to deem acceptable whatever 
---------------------------------------------------------------------------
      constructions of Federal law the state courts develop.

Martin H. Redish, ``Constitutional Limitations on Congressional Power 
to Control Federal Jurisdiction: A Reaction to Professor Sager,'' 77 
N.W.U.L.Rev. 143, 146-47 (1982). See also Martin H. Redish, 
``Congressional Power to Regulate Supreme Court Appellate Jurisdiction 
Under the Exceptions Clause: An Internal and External Examination,'' 27 
Villanova L. Rev. 900, 909 (1982) (``[I]f the policy-making branches of 
the Federal Government--Congress and the Executive--conclude that 
whatever interpretations of Federal law given by state courts are 
acceptable, there will be no need for Supreme Court policing of the 
state courts to assure compliance with Federal supremacy . . . What is 
important for purposes of federalism is that Congress have the power to 
check the states, not that such a check be required of Congress.'').
    The Supreme Court has clearly rejected claims that state 
courts are less competent to decide Federal constitutional 
issues than Federal courts.\84\ Justice William Brennan wrote, 
in Northern Pipeline Construction Co. v. Marathon Pipe Line 
Co.,\85\ that ``virtually all matters that might be heard in 
Art. III courts could also be left by Congress to state 
courts.'' \86\ Justice Brennan was joined in that decision by 
Justices Marshall, Blackmun, and Stevens.
---------------------------------------------------------------------------
    \84\ See Stone v. Rice, 428 U.S. 465, 492 (1976) (``[W]e are 
unwilling to assume that there now exists a general lack of appropriate 
sensitivity to constitutional rights in the trial and appellate courts 
of the several States. State courts, like Federal courts, have a 
constitutional obligation to safeguard personal liberties and to uphold 
Federal law.'').
    \85\ 458 U.S. 50 (1982).
    \86\ Id. at 64 n.15.
---------------------------------------------------------------------------
    And the leading scholars have long noted the constitutional 
alternative of state court resolutions of Federal 
constitutional claims. As Martin Redish has observed, ``The 
state courts have, since the nation's beginning, been deemed 
both fully capable of and obligated (under the supremacy 
clause) to enforce Federal law, including the Constitution . . 
. Congress has complete authority to have constitutional rights 
enforced exclusively in the state courts . . .'' \87\
---------------------------------------------------------------------------
    \87\ Martin H. Redish, ``Constitutional Limitations on 
Congressional Power to Control Federal Jurisdiction: A Reaction to 
Professor Sager,'' 77 N.W.U.L.Rev. 143, 155, 157 (1982) (emphasis 
added).
---------------------------------------------------------------------------
    Article VI of the Constitution states that ``This 
Constitution . . . shall be the supreme Law of the Land; and 
the Judges in every State shall be bound thereby . . .'' U.S. 
Constitution, Art. VI, Section 2. As Martin Redish has pointed 
out, ``It is all but inconceivable that the framers who had 
vested total discretion in Congress over substantive lawmaking, 
with the possibility that a Congress `biased' towards the 
states could choose to pass no substantive Federal law at all 
and instead defer completely to state control, would have 
fretted significantly over the possibility that Congress would 
take the lesser step of enacting substantive Federal law but 
leaving to the state courts the final authority to interpret 
it.'' \88\
---------------------------------------------------------------------------
    \88\ Id. at 148.
---------------------------------------------------------------------------
    As leading Harvard Law School Federal jurisdiction scholar 
Paul Bator has written, ``If the Constitution means what it 
says, it means that Congress can make the state courts--or, 
indeed, the lower Federal courts--the ultimate authority for 
the decision of any category of case to which the Federal 
judicial power extends . . . Indeed, a powerful case can be 
made that such a plenary power may be essential to making the 
institution of judicial review tolerable in a democratic 
society.'' \89\
---------------------------------------------------------------------------
    \89\ Constitutional Restraints Upon the Judiciary: Hearing Before 
the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 
97th Cong. 51, 55 (1981) (statement of Paul M. Bator, Professor, 
Harvard Law School). See also Paul Bator, ``The State Courts and 
Federal Constitutional Litigation,'' 22 Wm. & Mary L.Rev. 605, 627 
(1981) (``We must never forget that under our constitutional structure 
it is the state . . . courts that constitute our ultimate guarantee 
that a usurping legislature and executive cannot strip us of our 
constitutional rights.'').
---------------------------------------------------------------------------
    And as the Congressional Research Service has concluded, 
``[t]o the extent that state courts provide a forum for 
challenges to DOMA [the Federal Defense of Marriage Act], then 
concerns about removal of such issues from Federal courts are 
diminished.'' \90\
---------------------------------------------------------------------------
    \90\ ``Constitutional Issues Relating to H.R. 3313, the `Marriage 
Protection Act','' Congressional Research Service Memorandum to 
Subcommittee on the Constitution, House Committee on the Judiciary, 
from Kenneth R. Thomas, Legislative Attorney, American Law Division 
(March 1, 2004) at 6.
---------------------------------------------------------------------------

         H.R. 3313 IS A PROPER EXERCISE OF CHECKS AND BALANCES

    Far from violating the separation of powers, legislation 
that reserves to state courts jurisdiction to hear and decide 
certain classes of cases is an exercise of one of the very 
checks and balances provided for in the Constitution.
    As Lord Acton stated, ``Power tends to corrupt and absolute 
power corrupts absolutely.'' No branch of the Federal 
Government can be entrusted with absolute power--certainly not 
a handful of unelected Federal judges appointed for life. The 
Constitution allows the Supreme Court to exercise ``judicial 
power,'' but it does not grant the Supreme Court 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 all its powers to prevent perceived 
instances of overreaching by the other branches.
    Congress's exercise of its authority to remove classes of 
cases from Federal court jurisdiction does not transfer power 
from the Federal judiciary to Congress. Rather, it transfers 
power from the Federal judiciary to the state judiciary. 
Congress's exercise of its authority to remove classes of cases 
from Federal court jurisdiction also does not give Congress the 
power to decide the outcome of cases: that decisional authority 
would rest with the state courts.

      H.R. 3313 DOES NOT FAVOR OR DISFAVOR ANY PARTICULAR RESULT 
                         OR ANY GROUP OF PEOPLE

    H.R. 3313 does not favor or disfavor any particular result 
or any group of people. H.R. 3313 is motivated by a desire to 
preserve for the states the authority to decide whether the 
shield Congress enacted to protect them from having to accept 
same-sex marriage licenses issued out of state will hold--not 
by any ill will or animus.\91\
---------------------------------------------------------------------------
    \91\ See Romer v. Evans, 517 U.S. 620, 634-36 (1995) (holding state 
constitutional amendment unconstitutional under Federal Equal 
Protection Clause because ``the amendment has the peculiar property of 
imposing a broad and undifferentiated disability on a single named 
group'' and ``its sheer breadth is so discontinuous with the reasons 
offered for it that the amendment seems inexplicable by anything but 
animus toward the class it affects; it lacks a rational relationship to 
legitimate state interests.''); Ex parte McCardle, 74 U.S. (7 Wall.) 
506, 514 (1869) (dismissing case based on Federal statute repealing the 
act which originally authorized the appeal, stating ``[w]e are not at 
liberty to inquire into the motives of the legislature. We can only 
examine into its power under the Constitution; and the power to make 
exceptions to the appellate jurisdiction of this court is given by 
express words. What, then, is the effect of the repealing act upon the 
case before us? We cannot doubt as to this. Without jurisdiction the 
court cannot proceed at all in any cause. Jurisdiction is power to 
declare the law, and when it ceases to exist, the only function 
remaining to the court is that of announcing the fact and dismissing 
the cause. And this is not less clear upon authority than upon 
principle.'').
---------------------------------------------------------------------------
    H.R. 3313 does not dictate results: it only places final 
authority over whether states must accept same-sex marriage 
licenses granted in other states in the hands of the states 
themselves. H.R. 3313 should be supported by any Member who 
supports the proposition that lifetime-appointed Federal judges 
must not be allowed to rewrite marriage policy for the states.

                                Hearings

    The Committee's Subcommittee on the Constitution held one 
day of hearings on ``Limiting Federal Court Jurisdiction to 
Protect Marriage for the States'' on June 24, 2004. Testimony 
was received from Phyllis Schlafly, President, Eagle Forum; 
Martin H. Redish, Professor, Northwestern University School of 
Law; Michael Gerhardt, Professor, William & Mary Law School; 
William E. Dannemeyer, former U.S. Representative, with 
additional material submitted by individuals and organizations.

                        Committee Consideration

    On July 14, 2004, the Committee met in open session and 
ordered favorably reported the bill H.R. 3313 with an amendment 
by a recorded vote of 21 to 13, a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 3313.
    1. Ms. Baldwin offered an amendment to the amendment in the 
nature of a substitute to H.R. 3313 that would have allowed 
Federal courts to strike down on various constitutional grounds 
the provision of the Defense of Marriage Act that allows states 
to reject same-sex marriage licenses issued in other states. By 
a rollcall vote of 13 yeas to 20 nays, the amendment was 
defeated.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................              X
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................              X
Mr. Wexler......................................................
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             13              20
----------------------------------------------------------------------------------------------------------------

    2. Ms. Jackson Lee offered an amendment to the amendment in 
the nature of a substitute to H.R. 3313 that would have 
expanded the jurisdiction of the Federal courts. By a rollcall 
vote of 11 yeas to 19 nays and 1 pass, the amendment was 
defeated.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith.......................................................                              X
Mr. Gallegly....................................................
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................                              X
Mr. Conyers.....................................................
Mr. Berman......................................................              X
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................                                           Pass
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             11              19          1 Pass
----------------------------------------------------------------------------------------------------------------

    3. Motion to Report H.R. 3313 with an amendment in the 
nature of a substitute was agreed to by a rollcall vote of 21 
yeas to 13 nays.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................              X
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................              X
Mrs. Blackburn..................................................              X
Mr. Conyers.....................................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................              X
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             21              13
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 3313, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 16, 2004.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3313, the 
``Marriage Protection Act of 2004.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lanette J. 
Walker, who can be reached at 226-2860.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 3313--Marriage Protection Act of 2004.
    H.R. 3313 would preclude all Federal courts from striking 
down the section of the Defense of Marriage Act that provides 
no State shall be required to recognize same-sex marriage 
licenses granted in another State unless the State allows such 
recognition. The bill also would preclude all Federal courts 
from reviewing the provisions of H.R. 3313. CBO estimates that 
implementing the bill would not have a significant effect on 
the Federal budget.
    H.R. 3313 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of State, local, or tribal 
governments.
    The CBO staff contact for this estimate is Lanette J. 
Walker, who may be reached at 226-2860. This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
3313 would preclude Federal court jurisdiction over 28 U.S.C. 
Sec. 1738C and over the newly created 28 U.S.C. Sec. 1632 
created by H.R. 3313.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article I, section 8, clause 9; article 
III, section 1, clause 1; and article III, section 2, clause 2.

               Section-by-Section Analysis and Discussion

    The following discussion describes H.R. 3313 as reported by 
the Committee on the Judiciary.
    Sec. 1. Short title. Section 1 provides that the 
legislation may be cited as the ``Marriage Protection Act of 
2004.''
    Sec. 2. Limitation on Jurisdiction. Section 2 creates a new 
28 U.S.C. Sec. 1632 that provides that 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 of Title 28 of the 
United States Code, or the newly created 28 U.S.C. Sec. 1632.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

TITLE deg.TITLE 28, UNITED STATES CODE

           *       *       *       *       *       *       *


PART IV--JURISDICTION AND VENUE

           *       *       *       *       *       *       *


                     CHAPTER 99--GENERAL PROVISIONS

Sec.
1631.  Transfer to cure want of jurisdiction.
1632.  Limitation on jurisdiction.

           *       *       *       *       *       *       *


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.

           *       *       *       *       *       *       *


                           Markup Transcript



                            BUSINESS MEETING

                        WEDNESDAY, JULY 14, 2004

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:30 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present. Pursuant to notice I now call up the 
bill H.R. 3313, the ``Marriage Protection Act of 2003,'' for 
purposes of markup and move its favorable recommendation to the 
House. Without objection, the bill will be considered as read 
and open for amendment at any point.
    [The bill, H.R. 3313, follows:]

    
    
    Chairman Sensenbrenner. The Chair recognizes the author of 
the bill, the gentleman from Indiana, Mr. Hostettler, for 5 
minutes to explain the bill.
    Mr. Hostettler. Thank you, Mr. Chairman.
    Mr. Chairman, in 1996 both Chambers of the United States 
Congress overwhelmingly passed and the President signed into 
law the Defense of Marriage Act, otherwise known as DOMA. DOMA 
was in response to a decision by the Hawaii State Supreme Court 
which found that denial of marriage licenses to homosexual 
couples was a violation of Hawaii's Constitution.
    DOMA employed the authority granted to Congress in Article 
IV, Section 1 of the United States Constitution, that explicit 
and exclusive congressional authority is spelled out thus, 
quote: Full faith and credit shall 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, end quote.
    Since the passage of DOMA decisions in the United States 
Supreme Court and the Supreme Judicial Court of the State of 
Massachusetts have suggested that courts may be willing to call 
into question the constitutionality of the Federal DOMA. With 
that possibility looming, I introduced H.R. 3313, the Marriage 
Protection Act.
    H.R. 3313 seeks to utilize the constitutional authority of 
Congress to limit the jurisdiction of the Federal Judiciary to 
hear cases which may arise as a result of the 1996 Defense of 
Marriage Act. The bill provides that, one, no Federal court 
will have jurisdiction to hear a case arising under DOMA's full 
faith and credit provision and, two, no Federal court will have 
appellate jurisdiction in a case arising under DOMA's 
definition of ``marriage'' and ``spouse'' for purposes of 
Federal benefits. In essence, the bill says that no Federal 
court will have the opportunity to suggest that DOMA's full 
faith and credit provision is, quote, unconstitutional, end 
quote.
    Why may Congress do this? Simply because Article IV, 
Section 1 of the Constitution gives Congress explicit and 
exclusive authority to regulate full faith and credit 
relationships between the States. There is no need for the 
Federal courts to consider a question about Congress' authority 
when Congress' authority is so clearly expounded in the 
Constitution. But beyond that, Article I, Section 8 and Article 
III, Section 1 and 2 of the Constitution grant Congress 
explicit and exclusive authority to create the inferior Federal 
courts, regulate their jurisdiction and regulate the appellate 
jurisdiction of the Supreme Court.
    With regard to the creation and regulation of, quote, 
tribunals inferior to the Supreme Court, end quote, known today 
as district courts and courts of appeals, the Constitution 
states in Article I Section 8, quote: The Congress shall have 
power to constitute tribunals inferior to the Supreme Court, 
end quote.
    Further, Article I, Section 8 says, quote: The Congress 
shall have power to make all laws which shall be necessary and 
proper for carrying into execution the foregoing powers and all 
other powers vested by this Constitution and the Government of 
the United States or any department or officer thereof, end 
quote.
    Article III, Section 1 further stipulates that, quote, The 
judicial power of the United States shall be vested in such 
inferior courts as the Congress may from time to time ordain 
and establish, end quote. With regard to the regulation of the 
United States Supreme Court, the Constitution after first 
delineating the full range of cases the Federal Judiciary may 
consider and, second, delineating that very limited number of 
cases that the Supreme Court will have original jurisdiction, 
goes on to state in Article III Section 2, quote: In all the 
other cases before mentioned the Supreme Court shall have 
appellate jurisdiction both as to law and fact with such 
exceptions and other such regulations as the Congress shall 
make, end quote.
    And so, Mr. Chairman, this Committee is considering whether 
Congress should make a law that is necessary and proper for 
carrying into execution its constitutional power to regulate 
the inferior Federal courts' original and appellate 
jurisdiction and the Supreme Court's appellate jurisdiction 
concerning Congress' explicit and exclusive constitutional 
authority to regulate full faith and credit provisions between 
the States.
    I ask should Congress do this and not can Congress do this, 
advisedly. It is obvious to anyone who actually reads the 
Constitution that Congress can do this. In other words, the 
question today is should Congress exercise its constitutional 
authority to stop the Federal courts from striking down the 
Federal Defense of Marriage Act.
    The result of such a decision by the Federal courts would 
in effect invalidate the numerous State Defense of Marriage 
Acts. This would mean that the citizens of States such as 
Michigan, California, Virginia, North Carolina, Texas and 
Florida, who have their own statutes to define marriage as 
between one man and one woman would have to recognize the 
marriage licenses issued to homosexual couples by other States 
that require that practice. I believe the people of these 
States, as well as the people of the State of Indiana, should 
be able to defend and preserve the institution of marriage and 
that we today in this Committee should support them in their 
efforts.
    That is why, Mr. Chairman, I ask today that my colleagues 
support H.R. 3313, the Marriage Protection Act, and yield back 
the balance of my time.
    Chairman Sensenbrenner. The gentleman from Michigan.
    Mr. Conyers. Thank you, Mr. Chairman. I rise in some state 
of shock here this morning. I have heard of a lot of measures, 
more measures, amendments, bills, proposals, constitutional 
amendments than any Member on this Committee. And I would like 
to ask you, my friend, Chairman Sensenbrenner, what will you do 
with this bill proposed if it were to pass this Committee?
    And I yield to the gentleman.
    Chairman Sensenbrenner. I would file a Committee report, 
and it would be up to the leadership to schedule it.
    Mr. Conyers. Okay. Now, I want to ask the author of this 
amendment, does he know of--has ever heard of or has there ever 
been any research brought to his attention that we would limit 
any application for appellate review to no review whatever? And 
I yield to the gentleman.
    Mr. Hostettler. The main body of research that I have done 
is to read the Constitution of the United States.
    Mr. Conyers. Well, I am glad you did that.
    Mr. Hostettler. Yield back.
    Mr. Conyers. Well, we have established then, my friend, two 
things, that, one, you could read and, two, that you have read 
the Constitution. But can you answer the question? Or you don't 
know what the question is. Okay. I am going to repeat it again. 
Now, look, tell me where you ever heard of no review of a 
matter being prevented, no review whatever in your life in 
American history?
    I yield to the gentleman again.
    Mr. Hostettler. Actually, the question is false on its face 
in that there will be review, because in Article VI of the 
Constitution, the Constitution says, this Constitution and the 
laws of the United States shall be made pursuant thereof and 
all treaties made or which shall be made under the authority of 
the United States shall be the supreme law of the land and the 
judges in every State shall be bound thereby, anything in the 
Constitution or laws of any State to the Constitution 
notwithstanding. And so there is review of this question on the 
State court level and there has been in the past many 
constitutional questions on the State court level.
    Mr. Weiner. Would the gentleman yield to me for a question?
    Mr. Conyers. Yes.
    Mr. Weiner. Just so I understand the sponsor, do you 
believe that Marbury v. Madison was wrongly decided?
    Mr. Hostettler. Do I believe that Marbury v. Madison was 
wrongly decided? Which part of Marbury v. Madison?
    Mr. Weiner. The part of Marbury v. Madison that settled 
something that was nowhere in the Constitution is what if you 
have three branches Government who disagree about the 
interpretation of the law, who breaks the tie. And Marbury v. 
Madison ruled, frankly I am glad they did, that the Supreme 
Court and the courts of the land ultimately have the say. Do 
you believe that was wrongly decided?
    Mr. Hostettler. Will the gentleman yield?
    Mr. Weiner. I am curious as to the question because it 
would help me understand what we are getting at here.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Michigan.
    Mr. Conyers. And I yield.
    Mr. Hostettler. Actually, there are several constitutional 
scholars; for example, Louis Fisher from the Congressional 
Research Service. I have a copy of his work on Congressional 
checks to the Judiciary that I can provide the gentleman.
    Mr. Weiner. Would the gentleman from Michigan yield?
    Mr. Conyers. Of course.
    Mr. Weiner. There is only one, one constitutional scholar 
whose view I am interested in now, and that is yours. Do you 
believe that Marbury v. Madison was wrongly decided? Just so I 
understand where you are coming from.
    Mr. Hostettler. I believe that part of the case was wrongly 
decided.
    Mr. Weiner. Judicial review. Thank you. I yield back.
    Mr. Pence. Would the gentleman from Michigan yield?
    Mr. Nadler. Would the gentleman yield?
    Mr. Conyers. Yes.
    Mr. Nadler. I would ask the gentleman from Indiana one 
question. The gentleman says that if this bill were passed that 
the State courts could decide, could review peoples' claims.
    Mr. Hostettler. Yes.
    Mr. Nadler. So in other words, we would have 50 different 
decisions on whether a given law was constitutional and in New 
Jersey it would be held constitutional and in Indiana it would 
be held unconstitutional under what this would do? Yes or no.
    Mr. Hostettler. If the gentleman will yield. This allows 
the States to determine----
    Mr. Nadler. I asked you a different question. So the result 
of that would be, or would it not be that you would have a 
patchwork quilt and you would have 50 different decisions and 
in some States a Federal law would be unconstitutional and in 
other States it would be held constitutional because there 
would be no way to reconcile conflicting State court decisions? 
Yes or no.
    Mr. Hostettler. No.
    Mr. Nadler. Well, why not?
    Mr. Hostettler. Because you are suggesting that all 50 
States would----
    Mr. Nadler. I am suggesting nothing of the sort.
    Chairman Sensenbrenner. The time of the gentleman from 
Michigan has expired.
    Without objection, all Members' opening statements will 
appear in the record at this point.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress From the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary
    The only reason we are debating an unconstitutional and divisive 
proposal is because the President is in danger of losing his job and 
wants to detract attention from his Iraq failure and to bolster support 
among right-wing conservatives.
    Just last week, the death toll of U.S.-led forces in Iraq reached 
1,000. The 9/11 Commission found, contrary to President Bush's claims, 
that there was no relationship between Saddam Hussein and Al Qaeda. No 
weapons of mass destruction have been found in Iraq.
    What did the President do about it? He followed the advice of Paul 
Weyrich, a conservative organizer, who said the President had based his 
entire campaign on Iraq, and the escalating violence there meant he 
needed to ``change the subject'' to win in November.
    That is why we are here today talking about same sex marriage. The 
President and Republican leadership know that a constitutional 
amendment to ban same sex marriage has virtually no chance of passing 
in the House, and now they have pulled the old bait and switch. Instead 
of bringing up a constitutional amendment that would go down in flames, 
we are instead debating a bill that would strip federal court and 
Supreme Court review of the Defense of Marriage Act.
    At first glance, its proponents seem to have forgotten that our 
laws need to be constitutional. We all know from the Constitution and 
Marbury v. Madison that it is the role of the federal courts and the 
Supreme Court to review federal law. Yet that is exactly what this bill 
prohibits, virtually asking to be overturned.
    In some ways, this bill should not be a surprise because 
Republicans always try to remove federal courts from the process when 
courts might issue rulings contrary to right-wing beliefs. They did not 
like the Ten Commandments or Pledge of Allegiance decisions, so they 
introduced numerous bills to prevent federal courts from hearing cases 
on those two declarations. They also severely limited the ability of 
federal courts to issue writs of habeas corpus for state convictions.
    But make no mistake about it, this bill is the height of hypocrisy. 
In 2003, they made it a federal offense for a doctor to comply with a 
woman's right to choose. In the 1980's, they clogged up federal courts 
with drug offenses that had been left to the states. For at least a 
decade, they have been trying to move tort cases to the federal courts.
    And no one can forget that it was the Republicans who ran up the 
steps to the Supreme Court in the winter of 2000 when they needed to 
secure a presidential election.
    I urge my colleagues to vote ``No'' on this legislation.

    Mr. Nadler. Mr. Chairman.
    Chairman Sensenbrenner. The Chair--are there amendments? 
The Chair----
    Mr. Nadler. Mr. Chairman, I object. I want to read an 
opening statement.
    Chairman Sensenbrenner. Are there amendments? The Chair 
recognizes himself for purposes of offering an amendment in the 
nature of a substitute. The Clerk will report the amendment.
    The Clerk. Amendment in the nature of a substitute to H.R. 
3313 offered by Mr. Sensenbrenner. Strike all after the 
enacting clause and insert the following. Section 1, short 
title. This act may be cited as the ``Marriage Protection Act 
of 2004.''
    Section 2, limitation of jurisdiction. (a) In general. 
Chapter 99 of title 28, United States Code, is amended by 
adding at the end the following: Subsection 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 questions 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 of the following 
new item. 1632 limitation on jurisdiction.
    [The amendment in the nature of a substitute offered by Mr. 
Sensenbrenner follows:]



    Chairman Sensenbrenner. The Chair recognizes himself for 5 
minutes to explain the amendment. I offer this amendment in the 
nature of a substitute to focus this legislation in a way that 
will simply prevent Federal courts from striking down the 
provision of the Defense of Marriage Act that protects States 
from having to recognize same sex marriage licenses granted in 
other States.
    When James Madison wrote the Constitution, I don't think 
his notion of federalism included the thought that a divided 
court in one State would set national policy. Legislation 
focused in this way eliminates the threat of inconsistent 
judgments that will affect marriage laws across State 
boundaries. It will also prevent Federal judges from taking 
away from the States their right, codified in DOMA to reject 
same sex marriage licenses issued elsewhere.
    Any Member who wants to protect DOMA's provision preserving 
the States' prerogative to control marriage policy from 
invalidation by Federal judges should support this amendment in 
the nature of a substitute. The vast majority of Members of 
this Committee represent States that have passed laws that rely 
on the rights of States codified in DOMA to resist same sex 
marriage licenses issued out of State.
    The threat posed to traditional marriage by a handful of 
Federal judges whose decision can have an impact across State 
boundaries has renewed concern over the abuse of power by 
Federal judges. A remedy to such abuses has long been 
considered to lie, among other places, in Congress' authority 
to limit Federal jurisdiction. The Constitution provides that 
the lower Federal courts are entirely creatures of Congress, as 
is the appellate jurisdiction of the Supreme Court, excluding 
only its very limited original jurisdiction over cases 
involving ambassadors and in cases in which States have legal 
claims against each other.
    Limiting Federal court jurisdiction to avoid abuses is not 
a partisan issue. Senate minority leader Thomas Daschle of 
South Dakota supported legislation enacted during the last 
Congress that would deny all Federal courts jurisdiction over 
the procedures governing timber projects in order to expedite 
forest clearing. If limiting the jurisdiction of the Federal 
courts is good enough to protect trees, it also ought to be 
good enough to protect a State's marriage policy.
    Furthermore, far from violating the separation of powers, 
as some have alleged, 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 who are appointed for life. The 
Constitution allows an exercise of judicial power, but it does 
not grant the Federal courts unchecked power to define the 
limits of its own power.
    Integral to the American constitutional system is each 
branch of the Government's responsibility to use its powers to 
prevent overreaching by the other branches. This amendment in 
the nature of a substitute does just that, and I urge my 
colleagues to join me in supporting it.
    I want to make a couple of other observations. First, 
marriage policy has traditionally been left to the States, and 
there are 50 different State family codes which include both 
marriage law and divorce law. If the issue ends up being 
decided by judges, until the Supreme Court reaches a decision 
on a given issue, a judicial decision by the lower Federal 
courts is only binding within the district in which the 
district judge sits or the States in which an appellate judge 
has jurisdiction or an appellate court has jurisdiction over. 
So a lot of the decisions that have been made in the Federal 
courts on issues other than the marriage issue will have the 
type of crazy quilt application, and one that comes to mind is 
telecommunications policy and the application of the antitrust 
laws in the telecommunication policy.
    Secondly, this amendment does not foreclose the right of 
anybody to petition the State courts who are bound by the 
Constitution to reach a determination. But then it would be a 
decision of the judicial power of the State to decide whether 
or not DOMA was constitutional as it applied to that State 
rather than having a Federal judge do it. So this simply defers 
to the States.
    We have done if before on trees, and since the Judiciary 
Act of 1789, and I would urge support for this amendment in the 
nature of a substitute.
    The gentleman from New York, Mr. Nadler.
    Mr. Nadler. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Mr. Chairman, today we mark up legislation of 
clear unconstitutionality and even more dubious wisdom. 
Following four in a series of five hearings on the topic of 
same sex marriage, one would think that the possibility that 
somewhere a lesbian or gay couple might live out their years 
peacefully and happy were a greater threat to the future of the 
United States than al Qaeda, to which we have devoted less time 
in this Congress.
    Today, however, the topic is a very serious one. The 
hysteria over the marriage question has brought us to the point 
of considering a bill that would strip the Federal courts of 
the jurisdiction to hear cases involving alleged violations of 
an individual's rights protected under the Constitution. These 
proposals are neither good law nor good policy. Past attempts 
to restrict court jurisdiction have followed many civil rights 
decisions, including the reapportionment cases.
    Fortunately, cooler heads prevailed in Congress and the 
decisions that gave rise to these outlandish proposals are no 
longer controversial. Unless I am greatly mistaken no one in 
this room, not even Mr. Hostettler, would question the 
constitutional protection of one person, one vote.
    No less a liberal icon than Barry Goldwater battled court 
stripping bills on school prayer, busing and abortion, which 
were the big issues in those days. He warned his colleagues 
that, quote, the frontal assault on the independence of the 
Federal courts is a dangerous blow to the foundations of the 
free society, close quote. It is still true today. I trust that 
decades from now these debates will find their way into the 
textbooks next to the segregationist backlash of the 1950's, 
the court packing plan of the 1930's and other attacks on our 
system of Government.
    Our Committee has also received compelling testimony from a 
distinguished legal scholar called by the majority that this 
legislation is constitutionally suspect. Although Professor 
Redish has taken the controversial position that Congress has 
almost unlimited power to modify court jurisdiction, he made 
clear that this power is not without limits. As he put it so 
well in his testimony, quote, To be sure, several other 
guarantees contained in the Constitution, due process, 
separation of powers and equal protection, impose limitations 
on the scope of congressional power. The due process clause of 
the fifth amendment requires that a neutral independent and 
competent judicial forum remain available in cases in which the 
liberty or property interests of an individual or entity are at 
stake. The constitutional directive of equal protection 
restricts congressional power to employ its power to restrict 
jurisdiction in an unconstitutionally discriminatory matter. 
And as the Supreme Court made clear in the Roemer case, when 
the motivation for legislation is to deprive a specific class 
of people, in this case, gays and lesbians, of their access to 
the courts, that is a violation of the equal protection clause.
    Professor Redish also had some sound advice for Congress. 
Purely as a matter of policy I believe that Congress should 
begin with a very strong presumption against seeking to 
manipulate judicial decisions indirectly by selectively 
restricting Federal judicial authority. To exclude Federal 
judicial power to interpret or enforce substantive Federal law 
undermines the vitally important function performed by the 
Federal Judiciary in the American political system. The 
expertise and uniformity in interpretation of Federal law that 
is provided by the Federal Judiciary should generally not be 
undermined. Close quote.
    If there is any word that describes this legislation it is 
discriminatory both in its purpose and its effect. We have had 
four hearings so far on the subject of same sex marriage. Any 
court reviewing this legislation will certainly look at what 
has been said in the legislative record. The record is an 
unabashed record of hostility to a particularly unpopular 
minority. This bill has only one purpose, to ensure that 
members of this group do not get their day in court to assert 
their rights.
    Would we ever have suggested any other group in our society 
should be expelled from the Federal court system and left to 
wander every county courthouse in the country to try to 
vindicate their rights under the Federal Constitution? Are 
State courts an adequate forum to protect Federal 
constitutional rights? The majority does not think so when you 
are talking about the rights of big corporations in tort law, 
but when it comes to the rights of families and their children 
that is a different story.
    Perhaps my colleagues have forgotten that between the 
Judiciary Act of 1789 and the present day we fought a civil war 
and added the 14th amendment to our Constitution. Our rights 
are federally guaranteed. That means that an independent 
Federal judicial forum must be provided to all citizens to get 
a fair hearing.
    Mr. Chairman, it is our very system of Government and the 
constitutional checks and balances that are under attack by 
this bill. If the Congress by statute can prevent the Federal 
courts from applying the Constitution to any subject matter, 
then the protections of an independent Judiciary and the Bill 
of Rights will be no more than a puff of smoke. It will be 
unpopular minorities, whether religious minorities, political 
minorities, lesbians or gays or whoever, who will lose their 
rights.
    With all the hysteria and carrying on about unelected 
judges, it is perhaps worthwhile to remember that those 
unelected judges are part of our system of Government and part 
of our system of checks and balances. It is they who the 
authors of the Constitution saw fit to designate with a key 
role to protect the rights of unpopular minorities. As Hamilton 
said in Federalist 78, quote----
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Nadler. I would ask unanimous consent for one 
additional minute.
    Chairman Sensenbrenner. Without objection.
    Mr. Nadler. The complete independence of the courts of 
justice is peculiarly essential in a limited Constitution. By a 
limited Constitution I understand one which contains certain 
specified exceptions to the legislative authority such, for 
instance, as that it shall pass no bills of attainder, no ex 
post facto laws and the like. Limitations of this kind can be 
preserved and practiced no other way than through the mediums 
of the courts of justice, whose duty it must be to declare all 
acts contrary to the manifest standard of the Constitution 
void. Without this all reservations to particular rights or 
privileges would amount to nothing. Close quote.
    Mr. Chairman, gay marriage doesn't threaten our future, but 
the evisceration of our Constitution and our Bill of Rights and 
the destruction of the ability of the courts to protect those 
rights and leaving the vindication and the protection of 
Federal constitutional rights up to 50 State courts which will 
render 50 different decisions does threaten our rights and our 
liberties under the Constitution.
    We are playing with fire, Mr. Chairman, and that fire could 
destroy this Nation. I urge that we adopt--that we reject this 
dangerous nonsense. I thank you, Mr. Chairman. Yield back.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Smith.
    Mr. Smith. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Smith. Mr. Chairman, all Americans are entitled to a 
fair hearing before independent minded judges whose only 
allegiance is to the law. Too often we take for granted. But 
what should citizens do or their elected representatives when a 
few judges step out of bounds and try to change the rules of 
the game? Federal judges decide cases arising under the 
Constitution. 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.
    While judicial activism has existed since the founding of 
our Nation, it seems to have reached a crisis. Judges routinely 
overrule the will of the people and invent new rights and 
ignore traditional morality. Judges have redefined marriage, 
deemed the pledge of allegiance unconstitutional, outlawed 
religious practices and imposed their personal views on 
Americans.
    Fortunately, there is a solution. The Constitution empowers 
Congress to say that some subjects are off limits to Federal 
courts. The founders of our Nation foresaw the dangers of an 
unbridled Judiciary and provided a way for Congress to put 
limits on the Judiciary that often appears to have none.
    Thomas Jefferson lamented that, quote, the germ of 
dissolution of our Federal Government is in the Constitution of 
the Federal Judiciary, working like gravity by day and by 
night, 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.
    Responding to the argument that Federal judges are the 
final interpreters of the Constitution, Jefferson wrote, quote, 
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, end quote.
    The constitutional authority authorizing Congress to 
restrain Federal courts has been used before and should be used 
again. Legislation being considered today preserves the right 
of State courts to consider the constitutionality of the full 
faith and credit portion 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 happen to agree with DOMA. Forty-
four States have enacted laws that provide that marriage shall 
consist only of the union of a man and a woman. The 44 States 
include 86 percent of the U.S. population. We need to protect 
the right of the voters of these States to define marriage as 
they see it. This right is now threatened by activist judges 
who would overturn these State policies. When Federal judges 
step out of line, Congress has the responsibility to drop a red 
flag. On behalf of the American people, we should vote for this 
legislation because it rightfully restrains Federal judges who 
can in fact threaten our democracy.
    Thank you, Mr. Chairman. I will yield back.
    Mr. Conyers. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Mr. Chairman, I would ask unanimous consent to 
speak out of order for 1 minute.
    Chairman Sensenbrenner. Without objection.
    Mr. Conyers. Today, ladies and gentlemen of the Committee, 
Carolyn Donnelly is going to be shortly leaving our staff on 
the Judiciary, and I wanted to pay a tribute to her 25-year 
career. Carolyn Donnelly. Would you raise your hand? Carolyn 
Donnelly. Thank you so much.
    She has been a constant calm person with a sense of humor 
and good cheer that has marked her whole career. I and I don't 
think anyone have ever heard her raise her voice. She has 
always been on hand to help us. She was with some of us on the 
Government Operations Committee and is now completing her 
Federal career on the Committee on the Judiciary. We are real 
proud of her. She does a lot of volunteer work at her church, 
St. Patrick's Episcopal, and works in such programs as So 
Others Might Eat and the homeless programs, and so as you can 
see, Caroline, all of us on this Committee and the staff join 
in wishing you all the best as you leave the Hill.
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Conyers. I certainly will.
    Chairman Sensenbrenner. The Chair would like to echo the 
comment that has been made by the gentleman from Michigan. 
Caroline, you have done a very good job in serving all of the 
Members of the Committee, not just the minority party Members 
of the Committee, and we all wish you Godspeed and a happy and 
healthy retirement.
    Mr. Conyers. Mr. Chairman.
    Ms. Baldwin. Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from Wisconsin.
    Ms. Baldwin. Mr. Chairman, I move to strike the requisite 
number of words.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Baldwin. Mr. Chairman, today this Committee is poised 
to mark up legislation that if it were to become law could do 
grave damage. I strongly oppose H.R. 3313 and this amendment in 
the nature of a substitute and would urge the Members in the 
majority to reconsider this extreme approach to addressing the 
issue of same sex marriage and their concerns about so-called 
judicial activism. The consequences of enacting H.R. 3313 far 
exceed the stated objectives of the majority and would 
seriously undermine the faith of the American people in this 
Congress, in the courts, and in the principle of separation of 
powers and 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 three coequal branches of Government, the Congress, 
the Executive and the Supreme Court, and these three 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.
    As the Chairman knows well, the University of Wisconsin is 
dedicated to the proposition that it is through, and I quote, 
the continual and fearless shifting and winnowing by which 
alone 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, floor votes and amendments, 
conference committees, and we issue reports. The White House 
proposes legislation, engages in public debates, signs and 
vetoes legislation. The courts interpret, evaluate, settle 
disputes and invalidate laws based on our bedrock principles as 
enshrined in our Constitution.
    We all know the expression about liking laws and liking 
sausages and not watching either one get made. It isn't always 
a pretty process. But it is through the process which includes 
the Court that we sift and winnow our laws to improve them and 
ensure that they are fair and just for all Americans. It is a 
terrible mistake to try to strip one branch of the 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 and this amendment in the nature of a substitute is 
unconstitutional, and if it ever becomes law I believe it will 
be ultimately invalidated.
    Mr. Chairman, during the Constitution Subcommittee's 
hearing on this issue on June 24, two witnesses were present, 
both law professors, one asked in by the majority, one asked to 
appear by the minority, and they actually addressed the 
question that the gentleman, the author of the underlying bill, 
raised in his opening testimony. They addressed the question 
``can Congress do this'' and they addressed the question 
``should Congress do this''. And there was disagreement between 
these two expert witnesses, these constitutional scholars. 
Both--they reached different conclusions about whether Congress 
could do this, although even the majority witness said that 
power was not without limitations and they could not preclude 
access to the courts by a group of American citizens. But the 
question of should Congress do that, they answered with 
unanimity. Even the majority witness, Professor Martin Redish, 
said, and I quote his testimony because it was quite 
compelling: I firmly believe that Congress should choose to 
exercise this power virtually never.
    I think that we should take their counsel as we mark up 
this legislation, and I urge on my fellow Committee Members 
that this legislation is unnecessary, unconstitutional and 
unwise. It should be rejected.
    I yield back.
    Mr. Chabot.  Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Ohio, the 
Chairman of the Subcommittee on the Constitution.
    Mr. Chabot. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I don't intend to use 
the entire 5 minutes but I think this is a very important 
hearing, and I would just note that the Chairman of this 
Committee and I early on in this process set up a process by 
which we would have a series of hearings. We have held those 
hearings. We have invited legal experts from all over the 
country on both sides of the issue to come and testify. We have 
heard extensive testimony. Members of the Committee have had 
the opportunity on both sides to ask probing questions and get 
answers, answers back.
    This is not something that we have just acted in a knee 
jerk fashion. It is not something we really sought. It is 
something that was thrust upon us principally due to the 
actions of a few rogue players around the country and a few, in 
my view, rogue judges who oftentimes on very narrow votes have 
chosen to go against the policy which previously was in effect 
within those particular States.
    As I say, we held four hearings on this issue, and I would 
commend Mr. Hostettler for proposing this particular piece of 
legislation. I know he has given a tremendous amount of thought 
to it, as we all have, and the idea that this is something new, 
this so-called court stripping or reducing the jurisdiction of 
courts, the fact that that is unprecedented or it is in some 
way unconstitutional or contrary to things that have been done 
here recently is just not accurate. It has been done many times 
throughout time and, as the Chairman mentioned, most recently 
and perhaps most notably by the gentleman from South Dakota, 
Senator Daschle.
    Now, that had to do with a bill relative to timber and 
trees and that sort of thing, but I think the Chairman is 
exactly right. If we are going to do it to protect trees, we 
certainly ought to do it to protect what has been the 
cornerstone of our society, and that is families in this 
country. And it is the families that are under attack and need, 
I believe, to be protected.
    Now, I don't think we ought to change the marriage policy 
in this country. I think it should remain marriages between a 
man and a woman. But there are some that think it ought to be 
changed. The question that we are facing is if we are going to 
change that policy that has been the cornerstone of society and 
has been instrumental in how we raise kids in this country, 
should that be--who should make that decision? And I think most 
people think that this ought to be made by the will of the 
people. And how is the will of the people reflected in this 
country? It is reflected through their elected representatives.
    At the local level, that is generally done in State 
legislatures. Nationally, it is done right here by the Congress 
of the United States. That is who ought to make that policy. It 
shouldn't be done on a 4 to 3 vote from Massachusetts or any 
other State. And the concern has been, and that is why some 
have proposed a constitutional amendment. That is something 
that is still being considered. That is not before us today but 
something that is being considered, a constitutional amendment, 
and the concern that some people have is that other States, the 
DOMA which we passed on a huge vote, bipartisan vote, 346 or 
something to 65, I believe, in the House, and 85 to I believe 
14 in the Senate, one of those 14 happened to be Senator Kerry, 
who voted against that in the Senate. But that is over there. 
In both Houses it was overwhelming, and the concern is that 
that policy, which has worked for some time is now under attack 
and may well come from Massachusetts to my State of Ohio, or to 
Bill Jenkins here from Tennessee or to the Chairman up in 
Wisconsin or to other folks around the country, due to full 
faith and credit.
    Now, Mr. Hostettler has crafted, I think, a very good 
solution here, at least in the short term. It may not hold long 
term. We may ultimately, even later this year a constitutional 
amendment may be something that we may be considering, but I 
think this is a good piece of legislation.
    I would again commend the gentleman from Indiana for 
proposing this. We have done it before, and I could give you a 
whole range of examples but my time is about ready to run out. 
But again the most recent example was Senator Daschle. Senator 
Byrd proposed this on a whole range of issues some time ago. 
And so this is not unprecedented.
    I would urge my colleagues to support this legislation. 
Yield back.
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from Texas, Ms. Jackson Lee, seek recognition.
    Ms. Jackson Lee. To strike the requisite number of words.
    Chairman Sensenbrenner. The gentlewoman's recognized for 5 
minutes.
    Ms. Jackson Lee. I thank the Chairman very much. To my 
colleagues and to the Chairman and Ranking Member, I think we 
have tried most often in this Committee room, though sometimes 
we have not been successful, to respect the differing political 
and social, religious and human differences that we may bring 
to in place. We have often said that this Committee room is 
also the protector of the Constitution and the Nation as we 
know it. I don't know what to say about this legislation 
because I am somewhat taken aback by the quietness with which 
it has been defended and the lack of understanding that this 
literally undermines the Government as we know it.
    I, in my skin, have not often been happy with the decisions 
of the Supreme Court or the Federal court system. In fact, I 
remember sitting in the United States Supreme Court and 
listening to the decision of the 2000 election. I couldn't have 
been more disappointed, more distraught, more taken aback, more 
frightened for this Nation, more concerned for my constituents, 
so much so that we showed up, a number of us, on January 6, 
2001, again using a constitutionally provided provision or 
process under the Electoral College to challenge that election. 
Today, as I speak of it, I still feel a sense of panic and 
concern, frustration with the process and, yes, my country. But 
I will always hold to the fact that we have a system of 
Government, and there were times that in my skin, and my plight 
in this Nation, my second class citizenship, I could only look 
to the courts for relief.
    What this amendment does, this legislation does, and I 
respect the right of anyone's religious position. I have just 
spoken to a number of ministers in my community and I know that 
they may have their positions on a number of issues. But Mr. 
Chairman, and Committee Members and Ranking Member, Article III 
specifically notes the judicial power of the United States 
shall be vested in one Supreme Court and in such inferior 
courts as the Congress may from time to time ordain and 
establish. The judges both of the Supreme and inferior courts 
shall hold their offices during good behavior.
    Section 2 says the judicial power shall extend to all cases 
in law and equity arising under this Constitution, the laws of 
the United States. How can we sit here and literally undermine 
the structure of Government that holds us together? It keeps us 
from being an Iraq, an Afghanistan, a Sudan, and any other 
despot place around the world.
    I, too, have my position about the rights of individuals to 
be able to choose their partner and to engage in relationships. 
That is not the point. The point is that you have an amendment 
to the very nature of Government. That means that what we can 
spend our time in this Committee over the next couple of years 
is to frankly continue to amend by statute the powers of the 
Supreme Court and of the Article III courts.
    I don't like the fact that affirmative action has not been 
fully and completely affirmed as I would like it by the Supreme 
Court, therefore I want them to have no jurisdiction. I am not 
comfortable by the continuous throwing out of civil rights 
cases in our Federal court system, therefore I should give them 
no jurisdiction over equal employment opportunity laws and any 
other laws dealing with civil rights and affirmative action and 
others.
    I am not pleased with the immigration system in this 
country and the constant deportation and the lack of respect 
for those who have come to this country, albeit they may not 
have come in the right way, but they seek only to come here to 
be able to be part of this wonderful democracy, therefore I 
should amend the Federal courts totally out of the immigration 
system in its totality.
    I do not like the enemy combatant, which we don't, and 
therefore I should make sure that our courts have no rights and 
privileges as relates to terror cases.
    I do not like the Court's interpretation on first 
amendment, and therefore I should not have that.
    Mr. Chairman, I would simply say that this amendment is 
more than undermining. It is absolutely dangerous.
    Chairman Sensenbrenner. The time of the gentlewoman has 
expired.
    Ms. Jackson Lee. And I would ask my colleagues to defeat 
it.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Alabama, Mr. Bachus, seek recognition?
    Mr. Bachus. Mr. Chairman, there has been much said
    about----
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Bachus. Thank you. There has been much said about the 
rights of the Supreme Court and the Federal courts to be the 
final interpreter of what the law is, what is constitutional 
and what is not, and I would like to go back and quote what 
Thomas Jefferson and Abraham Lincoln said about this thoughts. 
Here is what Thomas Jefferson said about Federal judges being 
the final interpreters of the Constitution. He was responding 
to someone that made that statement.
    You seem to consider that Federal judges are 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.
    The Constitution has erected no such single tribunal 
knowing that to whatever hand is confided with the corruption 
of time and party its members become despots.
    He said this: If Federal judges become the final arbiters, 
then indeed our Constitution is a complete act of suicide.
    Here is what Abraham Lincoln had to say. Abraham Lincoln 
said this in his first inaugural address: 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 an eminent 
tribunal.
    It is clear that both Jefferson and Abraham Lincoln had no 
such thought that Federal judges employed for life should be 
the final interpreters of the law. In fact, Thomas Jefferson 
actually said that the fact that they are appointed for life is 
one reason that they should not be the final interpreters of 
what the law is.
    And I yield back the balance of my time.
    Chairman Sensenbrenner. What purpose does the gentleman 
from North Carolina seeks recognition?
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman, and Members. If I might 
digress before I make the comments about what is before us 
today just to acknowledge the presence of my daughter-in-law in 
the audience, whom I have met before, but she brought with her 
her parents and her brother, whom I have never met before 
today.
    So this is a very, very special day for me because I am 
getting the opportunity to meet my daughter in-law's parents 
and family for the first time. I assure you that they did not 
come to hear the debate on the same sex marriage issue or on 
the court stripping bill that is before us. It is happenstance 
that they are here today, but it is kind of unfortunate that 
they would be here to hear me for the first time in this 
legislative setting and meet me for the first time in a 
legislative setting having to address a bill such as this.
    I am distressed by what this bill proposes to do because it 
is perhaps the ultimate example of legislating by results or 
trying to achieve a result through legislation that has become 
characteristic of this Committee over the last several years. 
We don't seem to have much principle about our whole Federal 
system and how it is formulated and set up and how it was 
envisioned by our Founding Fathers. We don't seem to have much 
appreciation anymore for the notion of States rights. We don't 
seem to have any appreciation anymore for the separation of 
powers. We simply want the result that we would like to have 
from whatever level of Government, whatever court decides it. 
If it gives us the result that we are looking for, then we seem 
to be happy and we don't care about what consequences that may 
have for our whole system of federalism, our Judiciary, the 
separation of powers or any of that, and this seems to me to be 
the ultimate example of that.
    Take away the power of the Supreme Court to decide what due 
process is, what equal protection is, what--well, who then 
decides that? Fifty different State judiciaries. Maybe we 
should just do away with the whole United States and divide 
ourselves back into 50 different States. There were some powers 
that were given to the Federal Government and to our Judiciary 
in the founding documents that this bill, I think, 
substantially undermines, and I think it is unfortunate that we 
are considering this today. It is yet another example that we 
don't really believe in the principles that the Constitution 
was founded upon. If somebody puts their finger up in the wind 
and decides that the political winds may be blowing one way or 
another, we are willing to do whatever is necessary to go with 
that political wind and I think that is unfortunate.
    I am just happy that there were people of principle 
standing up for the Federal Judiciary when it was trying to do 
the right things during the civil rights movement.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Watt. And I appreciate the opportunity to address this, 
and I will yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Pence.
    Mr. Pence. Move to strike the requisite number of words, 
Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Pence. Mr. Chairman, I am delighted to be here today. I 
am a strong supporter of the Marriage Protection Act of 2003. 
Appreciate your leadership and the visionary leadership of my 
colleague, Mr. Hostettler, from Indiana. I love being on this 
Committee because I love the Constitution, I love debate, and I 
listen to my colleagues, who are men much smarter than me and 
much more articulate. But I get lost, Mr. Chairman, when I hear 
words like what we are doing today is undermining the structure 
of Government. Or that we are engaging in, and I am quoting 
now, an attack on our system of Government. And that we are 
threatening grave damage to the intentions of our founders.
    Well, I am looking at Article III, Section 2, Clause 2 of 
the United States Constitution, as proof 1789, and it reads, 
and I quote: The Supreme Court shall have appellate 
jurisdiction both as to law and fact with such exceptions and 
under such regulations as the Congress shall make.
    Now, I heard a quote from some expert that Congress should 
never use that authority, or almost never I think was the 
reference. And I accept the opinion. But I am quoting fact, Mr. 
Chairman. The Constitution of the United States, which 
apparently is the form of Government that we are talking here, 
that we--again the quote was undermining our structure of 
Government--says that Congress has in this power to set the 
jurisdiction of the court. In fact, Abraham Lincoln in the 
aftermath of I think the 1858 Dred Scott case, whereby a 5-4 
decision the United States Supreme Court said that slavery was 
the supreme law of the land in the new territories, Abraham 
Lincoln stood in this city in his first inaugural address and 
he took on not specifically Mr. Weiner's assertion because 
neither he nor I were born then, Mr. Weiner's assertion that 
the Court had the exclusive right to decide matters upon which 
the Constitution was to be decided as to the whole people.
    Mr. Weiner said that was the assertion of Marbury v. 
Madison. Abraham Lincoln stood in this city on the steps of the 
Capitol across the street and he disagreed with that. He looked 
at the immorality of a decision that said people of African 
descent were not entitled to rights under the Constitution of 
the United States and he said, quote: I do not forget the 
position assumed by some that constitutional questions are to 
be decided by the Supreme Court. And he went on to say that 
such decisions in private matters are certainly appropriate, 
but as Mr. Bachus just quoted, Abraham Lincoln said in his 
first inaugural address, referring to the Dred Scott case, the 
decision by the U.S. Supreme Court to codify slavery in the new 
territories. Abraham Lincoln said the candid citizen must 
confess that if the policy of the Government upon vital 
questions affecting the whole people is irrevocably fixed by 
decisions of the court, the people will have ceased to be their 
own rulers, having to that extent practically resigned their 
Government to the hands of an eminent tribunal. And then he 
went on to say apropos to our discussion today: Nor is there in 
this view any assault upon the courts or judges. That is my 
reading of history.
    What Article III says specifically, Mr. Chairman, what our 
16th President of the United States said when he courageously 
led our Nation away from the moral horror of slavery, I mean it 
seems to me that although I would never attribute this to my--
any of my distinguished colleagues, that there may well have 
been some people alive in 1859 and 1860, and I am sure I could 
find it in the historical record, who held the view the Supreme 
Court was the final decider on questions pertaining to the 
Constitution and President Lincoln ought to just shut up, and 
so ought the Congress ought to shut up on the question of 
whether or not people of African descent on this continent 
should have ever been afforded constitutional rights. And thank 
God he didn't, and thank God this Congress didn't.
    The truth is, Mr. Chairman, that we are here to defend and 
uphold the Constitution. We are here to exercise----
    Ms. Jackson Lee. Will the gentleman yield?
    Mr. Pence. There is plenty of time later. We are here to 
exercise the authority given to this Congress under the 
Constitution----
    Mr. Nadler. Will the gentleman yield for a question? Would 
the gentleman yield?
    Mr. Pence. I am about done. I will yield to Mr. Nadler.
    Mr. Nadler. Thank you.
    I would simply point out that the solution to the Dred 
Scott decision was the 13th and 14th amendments to the 
Constitution of the United States.
    Chairman Sensenbrenner. The gentleman from Indiana's time 
has expired.
    Mr. Pence. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. Are there any second degree 
amendments to the amendment in the nature of a substitute?
    The gentlewoman from Wisconsin, Ms. Baldwin.
    Ms. Baldwin. Mr. Chairman, I have an amendment to the 
amendment in the nature of a substitute at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 3313 offered by Ms. Baldwin.
    Page one----
    Ms. Baldwin. Mr. Chairman, I ask unanimous consent that the 
amendment be considered as read.
    Chairman Sensenbrenner. Without objection, so ordered. The 
gentlewoman is recognized for 5 minutes.
    [The amendment to the amendment in the nature of a 
substitute offered by Ms. Baldwin follows:]



    Ms. Baldwin. Mr. Chairman, my amendment would narrow this 
bill before us so the Supreme Court and inferior Federal courts 
would retain jurisdiction for challenges to the Defense of 
Marriage Act based on fundamental constitutional rights. The 
amendment would allow the Federal court to consider challenges 
to the Defense of Marriage Act, otherwise know as DOMA, 
involving due process and equal protection clauses embodied in 
the 5th and 14th amendments.
    Mr. Chairman, I believe that this legislation, the 
underlying legislation, is unnecessary, unconstitutional, and 
unwise. I can do nothing through amendment to make it necessary 
or to make it wise, but I can attempt through amendment to 
repair some of its constitutional defects in order to defend 
the rights of American citizens. This amendment will help to 
achieve that.
    During the Constitution Subcommittee hearing on June 24, 
Professor Michael Gerhardt from the William & Mary Law School 
testified that H.R. 3313 would run afoul of the equal 
protection portion of the due process clause of the fifth 
amendment because the bill would fail the rational basis test, 
particularly in light of the court's decision in the Roemer v. 
Evans case, decided in 1996, in which they invalidated 
Colorado's anti-gay referendum. In Roemer, the court states 
that ``a law declaring that in general it shall be more 
difficult for one group of citizens than for all others to seek 
aid from the Government is itself a denial of equal 
protection.''
    Mr. Gerhardt also testified that the bill fails the fifth 
amendment due process guarantee of procedural fairness by 
denying a Federal forum to litigants. He testified that 
``excluding all Federal jurisdiction with respect to some 
Federal law forces litigants into State courts which are often 
thought to be hostile or unsympathetic to Federal interests.''
    Professor Martin H. Redish of Northwestern University, a 
majority witness, also acknowledges the limitations on 
Congress' authority to limit court jurisdiction. He stated that 
``Congress quite clearly may not revoke or confine Federal 
jurisdiction in a discriminatory manner.''
    The equal protection clause necessarily limits our power to 
sideline Federal courts. Congress cannot remove the Federal 
courts without ensuring that another neutral forum be available 
for an American to seek redress. Mr. Chairman, my amendment 
will remedy some of the serious failures with this legislation. 
If the majority believes in due process and if the majority 
believes in equal protection, which I hope and believe the 
majority does, you should agree to this amendment.
    Please do not turn your backs on these two fundamental 
principles, and please remember it is our Federal courts that 
have been the venue and catalyst for helping our country to 
better realize Thomas Jefferson's words that all men, and I 
add, all women, are created equal.
    Mr. Chairman, I yield back the balance of my time.
    Chairman Sensenbrenner. Mr. Chabot.
    Mr. Chabot. Mr. Chairman, I rise in opposition to this 
amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Mr. Chairman, this guts the bill and is totally 
unacceptable. This gutting amendment should be rejected because 
it would allow Federal courts themselves to strike down 
provisions aimed at limiting their own jurisdiction. It makes 
no sense at all. You are taking away a particular area of 
jurisdiction from the Federal courts and bringing them right 
back in. It is confusing and unnecessary and does not make any 
sense.
    Lord Acton once stated that ``power tends to corrupt, and 
absolute power corrupts absolutely.'' no branch of the 
Government can be entrusted with absolute power; certainly not 
a handful of tenured Federal judges appointed for life. Those 
same judges should not be allowed to judge the extent of their 
own authority.
    Congress' exercise of its authority to remove classes of 
cases from Federal court jurisdiction does not transfer power 
from the Federal judiciary to Congress; rather, it transfers 
power from the Federal judiciary to the State judiciary.
    Congress' exercise of its authority to remove classes of 
cases from Federal court jurisdiction also does not give 
Congress the power to decide the outcome of those cases. That 
decisional authority would rest with the State courts. There 
seems to be, again, kind of a continuing misunderstanding that 
there would be no review. There will be a review. The review 
would be at the State level. The State courts are very well 
equipped to handle all kinds of decisions, including this 
particular type of issue. Again, this guts the bill. It is 
totally unnecessary and I strongly encourage my colleagues to 
oppose it.
    Chairman Sensenbrenner. Mr. Schiff.
    Mr. Schiff. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Schiff. Mr. Chairman, this is now at least the fifth 
hearing we have had on the subject of gay marriage. I said 
during the fourth hearing, admittedly somewhat facetiously, 
that I did not think that was enough, and that you can never 
have too many hearings on gay marriage.
    But, in fact, you can have too many hearings on one issue, 
particularly when it is to the exclusion of all other issues: 
when it excludes our ability to have a hearing on whether a 
Medicare actuary was threatened with being fired for disclosing 
to Congress the cost of the Medicare bill; whether a CIA agent 
was outed because her husband critiqued the Administration's 
use of a claim about seeking uranium from Niger; or even issues 
more particular to this Committee, whether the Administration 
should have the power to detain Americans as enemy combatants 
without giving them access to counsel or judicial review. We 
have not had time for those hearings.
    The irony of this fifth hearing is that we are abdicating 
our responsibility to place any check on the executive branch 
of Government in favor of an assault on the judicial branch of 
Government.
    Another reason why we can have too many hearings on a 
subject is evidently we are not listening to the witnesses we 
have called in these hearing. The DOMA panel testified 
unanimously, each of the four witnesses, they all felt DOMA was 
constitutional and would be upheld. If we listen to the 
testimony of the witnesses called in the Subcommittee, you 
would have to accept that this is probably unnecessary and 
unwise since the very law that the Committee is concerned 
about, its own witnesses have said unanimously I believe, is 
constitutional and likely to be upheld.
    But instead, we now move to strip the court of jurisdiction 
over an issue which the experts believe will be upheld because 
of a chance that it will not be upheld in the Federal court. So 
what are we going to do? We are going to give that jurisdiction 
to State courts.
    Then I go to one of the other panels we had where Mrs. 
Schlafly testified in favor of taking this away from the 
Federal courts and giving it to the State courts, to which I 
asked her, and I ask my colleagues on this panel, do we really 
want to take this issue away from the United States Supreme 
Court and give it to the Massachusetts Supreme Court? Or are we 
going to say we will give this jurisdiction only to certain 
State courts of our determination; and other State courts, we 
will not let them decide at all.
    Indeed, the two experts who testified, as opposed to the 
two advocates on the court-stripping panel, both said that we 
ought to be very, very circumspect about ever exercising this 
power to remove the jurisdiction of the Federal courts merely 
because we anticipate we might not like the result of their 
exercise of that jurisdiction.
    In fact, just looking at some of the bills introduced, we 
have great reason for the caution expressed by those experts. 
We have one bill, one bill which would remove Federal court 
jurisdiction over any policies, laws, or regulations concerning 
the free exercise or the establishment of religion, or the 
right of privacy or the right to marry, and should any Federal 
judge take up any issue involving that, the free exercise or 
establishment of religion, he is subject to impeachment under 
this bill.
    We have another proposal by another of our colleagues to 
remove jurisdiction of the courts over the Ten Commandments, 
another over the Pledge of Allegiance, yet another bill to 
remove jurisdiction of the Federal courts over any issue 
affecting the acknowledgement of God as the sovereign source of 
law, liberty, and Government.
    Again, the penalty for a judge who inquires or exercises 
jurisdiction there is impeachment, removal from office. Indeed, 
I asked one of the other witnesses on the court-stripping 
panel, our former colleague, Mr. Dannemeyer, why don't we just 
simply remove jurisdiction of the Federal courts over the 
entire first amendment and be done with it?
    Does anybody on this Committee believe we can undermine the 
courts without belittling the Congress itself?
    Does anyone believe we can force the court to look at the 
transient wishes of the Congress rather than the Constitution 
and not have it come back to undermine this very institution we 
serve in?
    If it is the first amendment we remove now, when will it be 
the second amendment we remove from the jurisdiction of the 
courts?
    Mr. Conyers. Could the gentleman yield?
    Mr. Schiff. Yes.
    Mr. Conyers. Did Mr. Dannemeyer want to remove the 
jurisdiction of the first amendment when you asked him that 
question?
    [The prepared statement of Mr. Conyers follows:]

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress From the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary

    Two of the most important rights enshrined in our Constitution are 
the rights to due process and to equal protection under the law. Those 
rights have been critical to protecting minorities against 
discrimination. Those rights have been critical to preserving every 
person's right to be heard and for decisions to be made in a 
consistent, nonarbitrary manner.
    Unfortunately, this bill--as drafted--would disallow anyone from 
protecting those rights in court, if they believe those rights have 
been violated by the Defense of Marriage Act. For this reason, and 
other reasons, this statute is itself unconstitutional. The Congress 
cannot pass a statute which essentially invalidates constitutional 
rights by rendering them unenforceable. A right without any legal 
recourse is no right at all.
    The Fourteenth Amendment to the United States Constitution says 
that ``[n]o 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.''
    Which part of these essential freedoms does the Majority disagree 
with?
    Which part should be unenforceable by any United States Court?
    When we were sworn into office, we all took an oath to ``protect 
and defend the Constitution of the United States against all enemies, 
foreign and domestic.'' Make no mistake about it: if you vote against 
this amendment, you are voting against one of the most vital and 
critical provisions in our Constitution.

    Mr. Schiff. He was not prepared to go quite that far, and I 
asked him whether we should merely enumerate within the first 
amendment the series of issues that should be removed from the 
court's jurisdiction, and I think he was amenable to that. But 
in the end I think we get to what John Marshall warned of when 
he said that ``the greatest scourge an angry heaven ever 
inflicted upon an ungrateful and a sinning people was an 
ignorant, a corrupt, or a dependent judiciary.''
    Mr. Chairman, I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Hotstettler.
    Mr. Hostettler. Mr. Chairman, I move to strike the last 
word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hostettler. Mr. Chairman, I rise in opposition to the 
amendment and wish to refocus the discussion here on the 
constitutional provisions that we are actually talking about, 
and that is the constitutional provision in Article 4, section 
1, that allows Congress to regulate the full faith and credit 
provisions between the States. It does not allow the courts to 
do it. It does not allow the President to do it. It says that 
Congress may by general laws prescribe the manner in which such 
acts, records, and proceedings shall be approved, and the 
effect thereof. Congress and Congress only. And we did that in 
the Defense of Marriage Act.
    If you believe that the Constitution allows Congress to do 
that and that Congress has done that, then the second question 
is do you find constitutional authority to regulate the Federal 
courts? This so-called independent court, that I would suggest 
to my colleagues that I don't see the modifier of independence 
in any discussion of the courts in the Constitution. In fact, 
at virtually every turn, the Congress is given the authority to 
check the courts. Also in Article 1, section 8, in Article 3, 
section 1 and 2. And then with regard to full faith and credit, 
we can likewise do it.
    If we can refocus our attention on what the Constitution 
actually says, we will find that in fact we can do this. If the 
gentlewoman would like to deal with the due process clause of 
the 14th amendment, and the equal protection clause of the 14th 
amendment, then the 14th amendment itself guarantees that 
Congress can do that, in that the 14th amendment says in 
section 5 that Congress shall have power to enforce by 
appropriate legislation the provisions of this article. She has 
the power to do that in a bill that she can introduce, but the 
simple fact of the matter is we are talking about explicit and 
exclusive authority of the Congress. There is no need to hand 
over authority to the judiciary to judge on matters where the 
Constitution grants explicit and exclusive authority to the 
Congress.
    Mr. Chairman, I yield back the balance of my time. I ask my 
colleagues to defeat the amendment.
    Chairman Sensenbrenner. Mr. Weiner.
    Mr. Weiner. Mr. Chairman, first I think this whole debate 
must be very dispiriting to anybody who supported DOMA. If you 
read the debate on the Defense of Marriage Act, there was a 
rather spirited discussion about whether or not DOMA would 
withstand constitutional muster. Some of the people who argued 
most fiercely at the time that yes it would, it would, it 
would, are now obviously retreating from that position; because 
if you believe it is in the Constitution, there is no reason to 
court strip or court shop or court disengage at all.
    In fact, the Chairman in some of his remarks leading up to 
this hearing, I believe, has taken the intellectually 
consistent position, although it may change with this vote, 
that hey, we were concerned about one court in one State 
dictating to another; therefore, we passed a law stating 
congressional supremacy in the issue, saying you do not have to 
acknowledge and recognize that law. That was DOMA. DOMA is the 
law of the land. Why the panic? You obviously believe that DOMA 
was so badly flawed that many of the opponents of the law at 
the time were right, that it is constitutionally flawed.
    Finally, I think we are having this debate here in the 
Judiciary Committee 1 year late for the 200th anniversary of 
Marbury v. Madison. This is an excellent Constitutional Law 101 
discussion about a fundamental blind spot, perhaps, in the 
Constitution of the United States, the document we revere. 
Nowhere did it say, anywhere does it say that courts have the 
right to strike down an act of Congress. It does not say that 
anywhere. You are exactly right. Well, in 1803 in what I think 
was a brilliantly reasoned case, which frankly I think some of 
the meshuggahs on the Supreme Court do not contest, even they 
do not say, even those folks who are so self-loathing about the 
courts that even they do not say that Marbury v. Madison was 
wrongly decided. There is an acceptance in this country that we 
are going to allow the courts to resolve these conflicts. They 
do not do it often. As a matter of fact, I think after Marbury 
v. Madison it went 50 years without them doing it again, 50 
years without them striking down another congressional act as 
unconstitutional.
    Finally, let me just clarify something else. We say this is 
done all of the time. It is not done all of the time. There are 
instances in the law where people say administrative 
proceedings and administrative tribunals cannot act on this 
with that provision. That was the Daschle case and the Byrd 
case. But nowhere does it say there isn't judicial review. 
Nowhere. You find me a case that said there is no access to the 
courts for someone who wants to challenge the interpretation of 
this law. That is not what happens.
    Sure, I don't have a problem with it going the other way as 
well, saying some cases like in the McCain-Feingold bill or the 
Shays-Meehan bill, we say go straight to the Supreme Court. I 
do not have a problem with that. But the fundamental premise of 
what we do around here is that someone is going to mediate 
these disputes.
    Mr. Conyers. Would the gentleman yield for a question?
    Mr. Weiner. I certainly will.
    Mr. Conyers. Can you explain to me what a meshuggah is, 
please?
    Chairman Sensenbrenner. And would you please spell that so 
the court reporter gets it right the first time?
    Mr. Weiner. Mr. Chairman, I have been reminded under the 
rules of the House, English is the official language of our 
proceedings, so I will withdraw the use of that word.
    Chairman Sensenbrenner. Without objection, the word is 
stricken.
    Mr. Weiner. Let me just conclude by saying this is an 
interesting discussion for someone like me, one of the few 
Members of this Committee who is not an attorney general. It is 
very interesting. I get to say things like Marbury v. Madison, 
which is not something I usually get to do, but this is a 
little surreal. We are all beating our chest, and the gentleman 
from Indiana saying we are in charge. No. We pass laws and then 
we give it to the Supreme Court. Even when they screw things up 
like they did in Gore v. Bush, we still stick to it. We say 
things have to go on. There has to be some arbiter of these 
decisions, and every American, every American, whether you 
believe what they do or not, has a right to the courts. That is 
a fundamental premise of our system of Government. And to say 
well, we are not going to do it in this or that case ignores 
the well-reasoned case of Marbury v. Madison.
    At the end of day, if you remember, it was a victory for 
Republicans. It was a victory for Republicans because they 
actually ruled in favor of the Republican position. So I would 
urge my colleagues to keep in mind that this is not a new 
concept.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Feeney.
    Mr. Feeney. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Feeney. Mr. Chairman, people paying close attention to 
this debate are getting lost in some of the sophisms that are 
going on. It is a pretty simple bill that we are passing, and 
the amendment seeks essentially to gut the bill. The proponents 
of the amendment and the people who oppose our determination to 
try to defend marriage from the Massachusetts Supreme Court 
basically suggest something that I find bizarre, and that is 
that which the Constitution gives to the Congress, Article 3, 
section 1, Congress cannot later modify or subtract from or 
eliminate.
    I find that sort of an absurd premise to base their 
argument on. I will tell you that from the very first act 
involving the judiciary, Congress engaged in limiting some of 
the court's jurisdiction. I will tell you that in Federalist 
80, Alexander Hamilton, as he tried to convince Americans to 
support and ratify the Constitution, said at times Federal 
court jurisdiction would become out of line and he suggested 
that would not be a problem because ``the national legislature 
will have ample authority to make such exceptions and prescribe 
such regulations as will be calculated to obviate or remove 
these in conveniences.''
    Later, in Federalist 81, Hamilton wrote that legislature 
could make such exceptions and regulations as the national 
legislature may prescribe. These are very important. These are 
the type of things that Senator Daschle engaged in in 
protesting forests and wildlife in his area.
    What we are trying to do here today is very simple. We are 
trying to protect the people of 49 States from four judges' 
redefinition of marriage on the Massachusetts Supreme Court. We 
are trying to ensure they cannot impose some new definition of 
marriage on the other 49 States.
    Article 4 of our Constitution guarantees all of us a 
republican, small ``r,'' form of government, meaning you as 
citizens get to vote for the people that will make your laws. 
None of us voted for the four characters that redefined 
marriage in Massachusetts.
    Now, if you want to live under philosopher kings making 
your laws for you, if you believe oligarchy is a great form of 
government, that is a different position. Plato, for example, 
in The Republic suggested that is a great way to be governed; 
but it is not our form of Government, and thank God it is not.
    I will say that if the people of Massachusetts want to 
lived under a judicial oligarchy, as Lincoln said, if they have 
decided to cease to become their own rulers, there is probably 
not much we can do to save the people of Massachusetts. But at 
least with respect to protecting the definition of marriage, 
Mr. Hotstettler's good bill will give us the right in 49 other 
States to preserve the democratic principle that our State 
legislatures and not the Massachusetts justices get to define 
what marriage means.
    Mr. Chairman, I yield back the balance of my time.
    Chairman Sensenbrenner. The Chair will note it is 
anticipated there will be three or four votes on the floor 
about 1 p.m. Should we not finish the bill before 1, we will be 
coming back after the votes and after a period for lunch. 
Members should set their schedules accordingly.
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Mr. Chairman, as I understand the opposition to 
this amendment, the bill will be ineffective. We will gut the 
bill if we allow courts to enforce the 5th and 14th amendments 
to the Constitution.
    I yield to anyone who disagrees with that assessment.
    Mr. Chabot. Would the gentleman repeat his question? No one 
was listening, I am afraid.
    Mr. Scott. As I understand the opposition to the amendment, 
the bill will be ineffective, we will gut the bill if we allow 
courts to enforce the 5th and 14th amendments to the 
Constitution.
    Mr. Chabot. Would the gentleman yield?
    Mr. Scott. I yield.
    Mr. Chabot. I don't think that is what we are saying. We 
are saying that without this amendment the States can already 
have judicial review. It is the Federal courts who would not be 
able to have judicial review.
    Mr. Scott. Let me state my statement again. As I understand 
the opposition to the amendment now, the bill will be 
ineffective, we will gut the bill if we allow Federal courts to 
enforce the 5th and the 14th amendments to the Constitution.
    Mr. Chabot. Would the gentleman yield?
    Mr. Scott. I yield.
    Mr. Chabot. What we are doing, we are giving the States the 
ability to review. We are taking the jurisdiction away from the 
Federal courts which has been done innumerable times prior to 
this occasion.
    Mr. Scott. Let me restate it then. Am I right in saying we 
will gut the bill if we allow the Federal courts to enforce the 
5th and 14th amendments to the Constitution?
    Mr. Chabot. Will the gentleman yield?
    Mr. Scott. I yield.
    Mr. Chabot. In this case, yes.
    Mr. Scott. Thank you.
    Mr. Chairman, I yield back the balance of my time.
    Mr. Nadler. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from New York.
    Mr. Nadler. Mr. Chairman, I have a number of comments. 
First, it is very clear this amendment does gut the bill. It is 
intended to gut the bill. It should gut the bill. The bill 
ought to be gutted.
    But the point is, it guts the bill because it says that the 
bill cannot be enforced by depriving the Federal courts of the 
ability to enforce the 5th and 14th amendments. That is what it 
does. And the bill in fact deprives the Federal courts of the 
ability to enforce the United States Constitution with respect 
to the subject matter at hand. That is one reason why it is an 
obnoxious bill.
    We have been told, and Mr. Chabot says it repeatedly, that 
the State courts will be able to uphold the Constitution of the 
United States. Well, yeah, they would be, but that would 
clearly mean that some State courts might rule that DOMA 
violates the 5th or 14th amendments. Some other State courts 
might rule it doesn't. There would be a patchwork quilt across 
the country. The Constitution would mean different things in 
different States.
    Mr. Chabot. Would the gentleman yield?
    Mr. Nadler. Yes.
    Mr. Chabot. The effect would only be felt within that 
particular State, so that is up to that State.
    Mr. Nadler. Mr. Chairman, reclaiming my time, you are not 
disagreeing with what I said.
    The Constitution would be different in different States. In 
New York, the courts might say DOMA is constitutional. In 
Colorado, the courts--and maybe I have it backwards--in 
Colorado the courts might say DOMA is not constitutional, 
according to the Federal Constitution. It was--and I do not 
remember which distinguished justice of the Supreme Court, 
whether it was Marshall or Frankfurter or Holmes--it was one of 
the greats, who said a number of decades ago that if the power 
of the court to declare a law passed by Congress 
unconstitutional were withdrawn, the country would survive.
    If the power of the courts to declare a law passed by the 
States unconstitutional were withdrawn, the country would not 
survive, because the fact is that you cannot have a unified 
country if the Constitution of the United States is interpreted 
differently in the different States. That is why we have the 
supremacy clause in the Constitution. That is why the 
Constitution is declared by the supremacy clause to be superior 
to any State laws or any State constitution so we have one 
country.
    What this would do by stripping the Federal courts of the 
ability to interpret the Constitution in certain respects and 
leaving it to the State courts means you would have 50 
different countries in effect, 50 different constitutions, at 
least in this area. Now, that is ridiculous.
    It also is clear that this bill is unconstitutional because 
it would violate--and when Mr. Feeney talks about the core 
function of the Supreme Court, or the court system, is that we 
should have one Constitution, not 50 constitutions--this would 
violate that. And whether it is Federalist 78 or Federalist No. 
80 which says specifically, and Federalist No. 80 says the core 
functions of the judiciary, including ensuring the supremacy 
and uniformity of Federal law and that congressional action to 
undermine these functions would be impermissible.
    The Marriage Protection Act wholly violates the separation 
of powers principle explained in Federalist Paper No. 80. Under 
the Marriage Protection Act, this bill, all challenges to the 
cross-State recognition of DOMA would be finally determined by 
the 50 State supreme courts. No gay or lesbian couple would be 
ever able to appeal to the United States Supreme Court, and no 
State would be able to either remove a challenge to DOMA to 
Federal court or to appeal to the United States Supreme Court. 
The Marriage Protection Act would cause the very legal chaos 
the U.S. Supreme Court averts by its core function of being the 
final authority on the constitutionality of Federal statutes. 
The Congress cannot deny the Supreme Court this core function.
    Finally, let me say that the case of the legislation 
sponsored by Senator Daschle that was cited as a precedent is 
not a precedent. The court of appeals in upholding that statute 
ruled in the case of Biodiversity v. Cables that the challenge 
legislation's jurisdictional bar did not apply to preclude 
court of appeals' review as to the legislation's validity under 
the Constitution. So it is a wholly different case, and it is 
not a posit to this.
    I maintain again this law is bad law. It is 
unconstitutional law, it would divide this country into 50 
different countries, and the gentlewoman's amendment would gut 
the bill and ought, therefore, to be adopted.
    Mr. Nadler. I ask unanimous consent to put this case into 
the record.
    Chairman Sensenbrenner. Without objection, so ordered.
    [The material referred to follows:]
    
    
    Mr. Bachus. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. Mr. Bachus is recognized for 5 
minutes.
    Mr. Bachus. Mr. Chairman, I am really surprised at my 
colleagues, in two regards. First, some of them have suggested 
this is all a waste of time, that this is a trivial or 
unimportant matter. I would say to all Members, how we define a 
marriage, whether we continue to define it as all States do and 
as the Federal Government has, as a marriage between a man and 
a woman, or whether we allow the courts to disregard that and 
to invalidate these laws and say that a marriage is not 
restricted to a man and a woman, it can be two men or two 
women, first of all, I would say to all of the Members that 
hopefully we at least ought to be able to agree that is a very 
important matter. That is fundamental to who we are as a 
people, to our beliefs, and to who we are as a country.
    Second of all, and I think equally absurd, is that somehow 
to argue that this body, which the Constitution clearly 
establishes as the lawmaking body under the Constitution, that 
this body should not make law on this, that we should allow the 
courts to make law or invalidate laws by legislators, by the 
properly elected legislature. It is in fact clearly under the 
Constitution. It is clearly, and any argument to the contrary 
is, I think, without any merit that this body has no right to 
make law in this regard or to protect laws which are on the 
books.
    Mr. Chairman, I yield the balance of my time to the 
gentleman from Indiana, Mr. Hostettler.
    Mr. Hostettler. Mr. Chairman, there has been much 
discussion about a concern of patchwork of marriage laws. Today 
we have essentially a micro patchwork of marriage laws in that 
the State of Massachusetts is allowing homosexual couples to 
marry, which is inconsistent with a vast majority of the 
States' policies. If Members are opposed to a patchwork of 
marriage laws, you must have one or two stances on this issue.
    First, you must support the gentlewoman from Colorado's 
amendment to the Constitution to eradicate the notion of a 
patchwork of marriage laws; or you must introduce your own 
amendment which says all States must allow homosexual marriage, 
similar to the status of what is going on in Massachusetts.
    If you oppose a patchwork of marriage laws, as we have 
patchworks of insurance laws, of all types of laws, property 
laws, zoning laws and ordinances, if you oppose a patchwork of 
laws for marriage, then you must be in favor of a uniform 
approach to marriage. I don't think very many of my colleagues 
on the other side of the aisle are at this point supporting the 
gentlewoman from Colorado's approach to amending the 
Constitution on marriage, so I must assume that in the wings is 
waiting a constitutional amendment to amend the Constitution 
requiring that all 50 States and territories of the United 
States and the District of Columbia must require that each 
State grant a marriage license to homosexual couples.
    Ms. Waters. Will the gentleman yield?
    Mr. Hostettler. It is the gentleman from Alabama's time.
    Mr. Bachus. I have yielded to the gentleman from Indiana.
    Chairman Sensenbrenner. The time still belongs to you.
    Mr. Bachus. Mr. Chairman, I will close by saying that I 
think it ought to be up to the people of the United States, 
through their elected representatives, to make these important 
decisions. And I think it is incumbent upon every Member of 
this Congress to take a stand on how you feel, representing the 
people you represent, and not to run from this and leave it to 
an unelected judiciary to make these important decisions. This 
is an important decision to our country, to our Nation, and to 
our future, and it ought not be decided by elected judges. It 
ought to be decided by the people who sent us up here to 
represent them. The people ought to make this decision, not 
unelected judges.
    Mr. Wexler. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Wexler. Mr. Chairman, nobody on this side of the aisle 
is running from the issue; just the opposite. If I understand 
the gentleman from Alabama's argument, it essentially goes like 
this. The issue in definition of marriage is so important, 
therefore, we ought to engage in a debate and a serious 
discussion. He takes exception with those that say it isn't or 
does not rise to the level of national importance so as to 
discard or move aside the other elements of national debate, 
but this issue is so important, so fundamental, that we must 
strike the jurisdiction of the Federal courts from ever 
entertaining it.
    It is that important that we need to single out the issue 
of definition of marriage and the Federal courts should not 
entertain it. If we were engaging in a discussion of the 
general jurisdiction of the Federal courts of the United 
States, that might be a legitimate argument, but I give my 
colleague and friend from Florida, Mr. Feeney, credit when he 
spoke about what is the purpose of this bill.
    Americans in good conscience have a differing level of 
opinion as to what defines marriage and a different level of 
comfort with different situations. But what an overwhelming 
number of Americans entirely are uncomfortable with is when 
their own Government singles out a law-abiding group of people 
for special treatment which is discriminatory in the process of 
our Government.
    Whether one is comfortable or not comfortable with gay 
marriage is one thing. Whether one believes marriage ought to 
be unique to a man and woman or ought to be able to be 
entertained and entered into by same-sex individuals and 
couples, that is one thing. But to go a step further and say 
that because someone chooses to enter into a same-sex marriage, 
then they have in effect given up their rights to go to the 
Federal courts and ask for the same constitutional protection 
as any other American. We are not trying to preordain a result. 
What we say is the Federal courts ought to have their 
opportunity to weigh in on this issue like they have in every 
other important issue that affects our society.
    With all due respect to the general definitions of we are 
seeking to protect marriage, I just want to go on record as one 
individual, one American, who is married to a woman who does 
not in any way feel jeopardized by the fact that men or women 
in Massachusetts or California or anywhere else in the country 
choose to engage in a monogamous relationship that is protected 
by law, and I wish those men and women well. I hope they have a 
long relationship, that they engage in a meaningful, loving 
relationship, and it does not in any way jeopardize my 
relationship with the woman I chose to marry.
    If we can get off this sanctimonious box of saying that 
those of us who are heterosexual and marry a man or woman 
opposite to our sex are somehow jeopardized by two loving 
people, whether they be men or women, and that our whole 
structure of life is coming crumbling down, I would 
respectfully argue that is not the issue. The issue is are we 
going to allow law-abiding Americans their day in court and let 
the courts decide based on a Constitution provision of 200-plus 
years.
    Mr. Chairman, I yield to the gentleman from Massachusetts.
    Mr. Delahunt. Mr. Chairman, I thank the gentleman for 
yielding.
    In response to my dear friend from Alabama, no one is 
running away from the issue. What I would have hoped is the 
majority, the proponents of this legislation, would have put 
out before us for consideration an amendment to the 
Constitution, much as what has occurred in the other body, and 
let us have the vote.
    But I do think that going in this direction, what we do is 
reconfigure the relationship between the three independent 
branches of Government. Let us be honest. What we are doing 
here is we are divesting from the United States Supreme Court 
the right of appellate review. I don't know, maybe someone can 
tell me from either side of the aisle.
    Chairman Sensenbrenner. The gentleman from Florida's time 
has expired.
    Mr. Carter. Mr. Chairman.
    Chairman Sensenbrenner. Judge Carter from Texas is 
recognized for 5 minutes.
    Mr. Carter. Mr. Chairman, I have been listening to this 
debate and I have been reading the Constitution. I am really 
reserved as to what the other side is saying. I have tried to 
uphold the Constitution for the entire time I served on the 
bench.
    The question we have as Members of Congress is do we have 
to meet the duties and responsibility that are set out in the 
Constitution for Members of Congress?
    When our Founding Fathers, when they faced a court prior to 
their independence, that court was a court that represented the 
crown. The crown was the king. The tyrannical king was what 
they were overthrowing when they declared their independence 
from Great Britain, so they clearly would have viewed a court 
system to be speaking for the crown at the time that they 
declared their independence.
    We substituted in our Constitution, in Article 3, the crown 
for the United States Constitution by declaring the judicial 
power of the United States shall be vested in one Supreme 
Court, et cetera. Our Constitution then stepped into the 
position that the crown had made. Now we have to look at does 
the court system by its independence, declared by unelected 
judges, are they at some point reaching a tyranny against this 
country. Who is supposed to look into that and see whether it 
is that in the opinion of the majority of the Congress? It is 
the Congress. It says right here, with such exceptions and 
rules and regulations as the Congress shall make. It says in 
Article 4 that the Congress may by general law prescribe the 
manner and acts and records and so forth.
    This is a duty imposed upon the Congress of the United 
States.
    Now, the fact that the Congress has never raised this duty 
to the level of a constitutional crisis, does that mean you are 
not supposed to do that? I happen to agree with the minority, 
this probably does raise the constitutional crisis. I do think 
that constitutional crisis will be resolved by the Supreme 
Court of the United States no matter what we write into this 
law. But I think by the fact that we are given the declaration 
``shall'' and in drafting--from anybody's interpretation of 
drafting legislation, ``shall'' means you have got to do it. At 
some point in time when the majority of this Congress feels 
like an issue ought to be raised, even if it is a 
constitutional crisis, we have a duty if we believe in this 
Constitution to raise that issue. And if not, then I would like 
someone on the other side of the aisle to tell me who should 
uphold the provisions of Article 3 of the Constitution which 
says the Congress shall.
    Mr. Weiner. Would the gentleman yield?
    Mr. Carter. I yield.
    Mr. Weiner. Mr. Chairman, it is funny that the gentleman 
says that, because today a bill that is sponsored by Mr. Bachus 
is on the floor commemorating the life of John Marshall. He 
asked that exact same question and answered it in a case that 
you are familiar with.
    Mr. Carter. I know I am familiar with it.
    Mr. Weiner. I guarantee from time to time you have been 
glad it was argued, which is Marbury v. Madison. That is 
exactly where that question is answered.
    Mr. Chairman, I ask unanimous consent that the decision of 
Marbury v. Madison be placed in the record at this point.
    Mr. Smith. [Presiding] That unanimous consent request is 
granted.
    [The material referred to follows:]
    
    
    Mr. Weiner. I have a copy here.
    Mr. Carter. Reclaiming my time, no, it does not speak to 
Marbury v. Madison. This question is where is the check and 
balance in this Constitution if it is not in the writing of the 
Constitution that the Congress has over the court? There it is, 
right there in black and white. We have a check and balance 
over the court. Marbury v. Madison, there is nobody trying to 
limit the jurisdiction of the court.
    Mr. Weiner. If the gentleman would yield, that is exactly 
what the case was. It was a case about whether or not the writ 
of mandamus, whether the court could order Congress, could 
order another branch, the executive branch, to issue this writ; 
and the executive said what you just said: No, no, the 
Constitution says that only the Congress can do that. And John 
Marshall, in an extraordinarily reasoned decision, said oh, no, 
we are not all equal. In the case of interpreting acts of the 
executive and the legislature, it is the judicial branch that 
has the final say. That is exactly the precedent.
    Mr. Carter. We are not talking about interpreting the acts 
of the legislative branch. We are talking about interpreting 
the acts of the judicial.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from California, Ms. Waters.
    Ms. Waters. Thank you very much, Mr. Chairman.
    I came to this hearing today with no real intention of 
engaging in discussion on this legislation because I feel so 
strongly that it is simply political in nature and that it is 
designed to strengthen a more conservative element of this 
country with an eye towards the elections in November.
    However, I am really surprised at some of the debate which 
is taking place. We have been challenged on this side of the 
aisle that if we do not like this legislation, that somehow we 
have to be for a constitutional amendment that would force the 
State to do what we would want it to do, and that is absolutely 
not true.
    I think on this side of the aisle we are simply for equal 
protection under the law. You talk about the rule of law. The 
rule of law in this country is that none of us will be excluded 
from access to the courts. None of us. It does not matter 
whether you are gay or lesbian or black or disabled, you have 
the right to petition your courts at every level.
    I do not quite understand the argument that likens the 
Supreme Court to the crown, and then goes on to say that in 
some way these unelected judges are synonymous to the Supreme 
Court, and when we take them on, we are taking on the crown or 
that which substituted for the crown, the Supreme Court. We 
simply want the right for folks to be able to get to the 
Supreme Court. We are very fair in what we are talking about. 
What we are saying is yes, you have a patchwork of laws at the 
State level, and let those who will, take this debate all of 
the way to the highest level of the courts in this country.
    Why would anybody block the ability to take the debate and 
the argument to the highest level so that decisions can be 
made?
    Let me just say after we get through with the so-called 
dispassionate arguments on this issue, arguing the law, 
disagreeing on jurisdiction, all of that, this is one of the 
most divisive, political acts that could be committed by an 
elected official. We are dividing communities, we are pitting 
families against each other. We are causing even people who 
work in this building and elected officials to try and hide 
their preferences based on accusations and threats of outing. 
How can you do this?
    I want to tell the Members of this body that we see this 
division at the highest level. Isn't it absolutely telling that 
the Vice President of the United States and his wife are now in 
public view disagreeing on this issue. You know why? They are 
torn. They are torn because they have a child who is openly 
lesbian, and one parent has made the decision that they will do 
the political thing and do whatever they are told to do by the 
President of the United States, and another member of that 
family is saying I stand with where my husband said he stood 
when he said he believed that it should remain with the States.
    And so despite the fact that I think we can argue all day 
long about equal protection, unelected jurists, whether or not 
the Supreme Court should be blocked from ever hearing cases on 
this issue, the fact of the matter is this is simply a 
political move. This is simply an issue which has been framed a 
few months from an election. I would hope that we would 
discontinue, close this down, and go on with the business of 
this Government with so many important issues which need to be 
attended to.
    Mr. Chairman, I yield to the gentleman from Massachusetts.
    Mr. Delahunt. Mr. Chairman, I thank the gentlewoman for 
yielding.
    We have heard about unelected judges and the rights of 
people to make these decisions, which some believe is so 
fundamental.
    Let me issue a challenge. There is nothing more open in 
terms of listening to the people's views on a constitutional 
amendment. We all know the process that would be required. What 
I would suggest is that those who feel that unelected judges 
should not be involved--and in most States there are unelected 
judges--I think it would be a better course to bring before 
this Committee a constitutional amendment, which I would 
oppose.
    Chairman Sensenbrenner. The gentlewoman's time has expired.
    Mr. King. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman from Iowa, Mr. King.
    Mr. King. Mr. Chairman, I would like to speak to a broader 
issue as to what is at stake here. When we discuss the 
constitutional aspects, one of the questions is where is the 
check? If Congress is not the check on the overreach of power 
by the judiciary, where is it? I will say, Congress is the 
check.
    One thing is that the courts will hear this case. They will 
hear this case eventually, and we are asking them to go back 
and reread the Constitution and finally make a decision after a 
couple of centuries on where the check is on the tyranny of the 
courts.
    But what is at stake here is marriage itself, our families, 
our way of life. And all of human history points to a man and a 
woman joined together in matrimony, raising children, passing 
their values along, father and mother, to the next generation; 
their religious values, their community's values, their sense 
of community and nationhood and history. That has been proven 
throughout the millennia to be the undisputed method by which a 
civilization survives.
    Here we have another argument in front of us that says we 
can use the courts to contravene the will of the people to 
impose another kind of a relationship here by the virtue of 
four judges to three in Massachusetts imposing that upon the 
rest of the Nation. If that happens, and if you argue that we 
should not draw the line at marriage as we know it, then where 
would you draw the line? If we do not draw this line here and 
limit the jurisdictions of the courts and slow down this 
contravention of the will of the people, where do we draw the 
line?
    Do we draw the line, as Mr. Frank testified in a hearing, 
he would draw it at two people. We have heard that in testimony 
earlier today. How would you draw it at two people? If you 
cannot draw it at a man and woman, how do you draw the line at 
two people and not three. If you cannot draw the line at three 
people, how do you draw the line with any other relationship 
that is out there? Eventually if this precedent is allowed to 
stand which has been established in Massachusetts, then 
eventually every human relationship will become a 
constitutional right by the same logic. If those human 
relationships become constitutional rights, it breaks down the 
entire structure of family and relationship.
    And, we are a in values-neutral society. I am not worried 
about the high-school kids today, I am worried about the ones 
that are just born and those yet to be born that will grow into 
a society that they do not know the traditions that we have. 
They will be told, you don't know what you might be and what 
your preferences might be, so you ought to experiment with a 
number and settle on one or two or three, or rotate throughout 
a lifetime. They will be told that one relationship is as good 
as any other. They will have a menu of life far different than 
the one that we are talking about here, and that menu of life 
will encourage them to try to sample along that list. When that 
happens, you will see relationships form for reasons other than 
personal love. For example, there will be relationships formed 
because they want to access someone's 401(k) plan or somebody's 
health care plan or retirement plan or inheritance. So we do 
not have either a limitation on what group relationship could 
be married to another group relationship.
    What would be the constitutional prohibition? How could we 
ever limit a group marriage and one of those people being into 
another group marriage? It ends up in a never-ending, 
interconnecting link of relationships which breaks down this 
entire structure, this structure of family which has been 
proven through at least 6,000 years to be the model that 
perpetuates our situation.
    The argument has to be a lot stronger from the other side. 
Marriage is not a right. It is not a constitutional right. It 
is not a civil right. We give a marriage license. A license is 
by definition permission to do something which is otherwise not 
legal. It is a privilege to get married, d we support that 
because of all of the good things that I have described and 
many more beyond. It does not discriminate against anybody 
else. We want people to have the privacy of their lives, we 
just do not want that imposed upon all of the States, and we 
absolutely do not want to see Massachusetts law imposed upon 
the entire United States of America.
    The Hostettler bill slows that process down. We do need a 
constitutional amendment. We must save marriage. It is the most 
critical issue of our time.
    Mr. Chairman, I yield back the balance of my time.
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Lofgren.
    Ms. Lofgren. Mr. Chairman, I like my colleague, Ms. Waters, 
had not planned to engage in debate this morning but I feel a 
need to say a couple of things.
    First, as Ms. Waters has noted, have debated this on two 
levels. The first is really the substance, and I think it is 
clear there is just one reason why this measure is before us 
today, and that is to divide America for political gain, and I 
think it is quite unfortunate that is the goal which is being 
pursued.
    Also, I have been a Member of the Judiciary Committee for 
9\1/2\ years, and I think we have hit an all-time low in terms 
of debate on the legal issues before us. I mean, the proponents 
of this bill have said so many preposterous things, I find it 
almost embarrassing to listen to it. So I have a request. I 
would like every Member of the Committee who actually went to 
law school to provide me with the name of their constitutional 
law professor, and I would like to send their comments to their 
professor and ask their former professors to engage with them 
in a renewal of the course, because it really is quite alarming 
and frightening to me that this kind of discussion could occur 
in this year about our fundamental, basic constitutional law.
    This bill is unconstitutional. If it passes, which it 
probably will not, it will be tossed by the court. But the 
discussion about this is enormously alarming and I think should 
frighten Americans everywhere.
    Mr. Chairman, I yield the balance of my time to Mr. 
Delahunt from Massachusetts.
    Mr. Delahunt. Mr. Chairman, I thank the gentlewoman.
    I have to allay some of the concerns I heard from my dear 
friend on the other side of the aisle, Mr. King, about 
Massachusetts dictating their policy regarding marriage to the 
other States of the Union. That simply is inaccurate. It is not 
the case. Let me refer to you or let me quote to you certain 
excerpts from a brief recently filed by the chief law 
enforcement officer of the Commonwealth of Massachusetts, the 
attorney general, as well as excerpts from the Goodrich opinion 
which obviously is a focal point, if you will. So for those of 
you who are concerned about Massachusetts impacting policy in 
the definition of marriage in your States, I would respectfully 
request you to listen very carefully to the excerpts that I 
will quote.
    `` the argument made that legalization of same-sex marriage 
in Massachusetts will be used by persons in other States as a 
tool to obtain recognition of a marriage in their State that is 
otherwise unlawful is precluded by provisions of,'' and it 
enumerates various sections of the Massachusetts general laws. 
The language used throughout the Goodrich majority decision 
recognizes that other States are entitled to reach their own 
conclusions about same-sex marriage and that nothing in 
Goodrich is intended to force the issue in or on other States. 
The Goodrich court carefully and repeatedly limited the reach 
of its decision to Massachusetts residents or citizens. Our 
concern is with the Massachusetts Constitution as a charter of 
governance for every person properly within its reach.
    So please do not misunderstand the implications of this 
decision. Understand that there is a specific Massachusetts 
statute expressly according respect to other States' marriage 
laws. This is not the case. The Goodrich decision, the 
Massachusetts decision, will not implicate the policy of other 
States.
    Chairman Sensenbrenner. The gentlewoman's time has expired.
    Let me make a suggestion. There are some Members who have 
obligations over the lunch hour. Most of this debate does not 
relate to the Baldwin amendment specifically. Because Members 
are here, I think it would be good comity to allow a vote on 
the Baldwin amendment now, the next amendment can be offered, 
and then the debate can continue.
    Those in favor of the Baldwin amendment to the amendment in 
the nature of a substitute will say aye.
    Opposed, no.
    The noes appear to have it.
    Ms. Baldwin. Mr. Chairman, I request a rollcall.
    Chairman Sensenbrenner. A rollcall is requested and will be 
ordered.
    Those in favor of the Baldwin amendment to the amendment in 
the nature of a substitute will, as your names are called, 
answer aye. Those opposed, no.
    The Clerk will call the roll.
    The Clerk. Mr. Hyde.
    [No response.]
    The Clerk. Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble votes no.
    Mr. Smith.
    Mr. Smith. No.
    The Clerk. Mr. Smith votes no.
    Mr. Gallegly.
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly votes no.
    Mr. Goodlatte.
    [No response.]
    The Clerk.Mr. Chabot.
    Mr. Chabot. No.
    The Clerk. Mr. Chabot votes no.
    Mr. Jenkins.
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins votes no.
    Mr. Cannon.
    Mr. Cannon. No.
    The Clerk. Mr. Cannon votes no.
    Mr. Bachus.
    Mr. Bachus. No.
    The Clerk. Mr. Bachus votes no.
    Mr. Hostettler.
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler votes no.
    Mr. Green.
    Mr. Green. No.
    The Clerk. Mr. Green votes no.
    Mr. Keller.
    Mr. Keller. No.
    The Clerk. Mr. Keller votes no.
    Ms. Hart.
    Ms. Hart. No.
    The Clerk. Ms. Hart votes no.
    Mr. Flake.
    Mr. Flake. No.
    The Clerk. Mr. Flake votes no.
    Mr. Pence.
    Mr. Pence. No.
    The Clerk. Mr. Pence votes no.
    Mr. Forbes.
    Mr. Forbes. No.
    The Clerk. Mr. Forbes votes no.
    Mr. King.
    Mr. King. No.
    The Clerk. Mr. King votes no.
    Mr. Carter.
    Mr. Carter. No.
    The Clerk. Mr. Carter votes no.
    Mr. Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney votes no.
    Mrs. Blackburn.
    Mrs. Blackburn.  No.
    The Clerk. Mrs. Blackburn votes no.
    Mr. Conyers.
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers votes aye.
    Mr. Berman.
    Mr. Berman. Aye.
    The Clerk. Mr. Berman votes aye.
    Mr. Boucher.
    [No response.]
    Mr. Nadler.
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler votes aye.
    Mr. Scott.
    Mr. Scott. Aye.
    The Clerk. Mr. Scott votes aye.
    Mr. Watt.
    Mr. Watt. Aye.
    The Clerk. Mr. Watt votes aye.
    Ms. Lofgren.
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren votes aye.
    Ms. Jackson Lee.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee votes aye.
    Ms. Waters.
    Ms. Waters. Aye.
    The Clerk. Ms. Waters votes aye,
    Mr. Meehan.
    [No response.]
    The Clerk. Mr. Delahunt.
    Mr. Delahunt. Aye.
    The Clerk. Mr. Delahunt votes aye.
    Mr. Wexler.
    [No response.]
    Ms. Baldwin.
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin votes aye.
    Mr. Weiner.
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner votes aye.
    Mr. Schiff.
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff votes aye.
    Ms. Sanchez.
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez votes aye.
    Mr. Sensenbrenner.
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Sensenbrenner votes no.
    Chairman Sensenbrenner. Are there Members in the Chamber 
who wish to cast or change their vote?
    The gentleman from Virginia, Mr. Goodlatte.
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte votes no.
    Chairman Sensenbrenner. If there are no further Members in 
the Chamber who wish to cast or change their vote, the Clerk 
will report.
    The Clerk. Mr. Chairman, there are 13 ayes and 20 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    [12:30 p.m.]
    Chairman Sensenbrenner. Let me talk a little bit about 
scheduling. After this announcement the Chair will ask if there 
are any more amendments. I imagine there will be another 
amendment or two. We will continue debating those amendments 
until the votes are called on the floor. If we get talked out 
before the votes are called on the floor, the Committee will 
recess at that point. I don't think that is a possibility, but 
I am just saying so to put it on the record. When we have the 
votes on the floor, and it is anticipated that there will be 
four votes on the floor, the Committee will recess. We will 
come back promptly 30 minutes after the conclusion of the last 
vote on the floor. Everybody clear on that? The conclusion of 
the last vote on the floor. So there will be no further votes 
between now and the time the bell rings to summon us over to 
the floor. Come on back probably 30 minutes after the 
conclusion of the last vote on the floor, and we will then 
resume consideration and stay in session until we complete this 
bill today. So, again, no votes until after the recess for the 
votes and the lunch hour.
    Are there further amendments?
    Ms. Jackson Lee. I have an amendment at the desk.
    Chairman Sensenbrenner. Okay. The gentlewoman----
    Ms. Jackson Lee. This is a handwritten one.
    Chairman Sensenbrenner. The clerk will report the 
handwritten one.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 3313 offered by Ms. Jackson Lee. Strike all 
after the enacting clause and insert the following: Section 1. 
Short title. This act may be cited as the Marriage Protection 
Act of 2004. Section 2. Limitation of jurisdiction. A----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read, and the gentlewoman from Texas will be 
recognized for 5 minutes.
    [The amendment to the substitute offered by Ms. Jackson Lee 
follows:]



    Ms. Jackson Lee. I thank the Chairman.
    Mr. Chairman, this--as I have listened to the debate, and 
particularly the debate on the gentlelady's very thoughtful 
amendment that almost passed previously, I want to again refer 
my colleagues--so many of them have been utilizing the 
Constitution and the Marbury v. Madison and a number of other 
citations and suggesting a variety of opinions based around 
their own interpretation. I would like to just simply draw my 
colleagues' attention to the language in 1632, and it reads as 
follows: Courts created by an act of Congress shall have all 
jurisdiction necessary and the Supreme Court shall have all 
appellate jurisdiction necessary to hear or decide any question 
pertaining to the interpretation of or the validity under the 
Constitution of all cases in law and equity arising under this 
Constitution, the laws of the United States and treaties.
    I cite partially from Article III, and I do that because I 
cannot believe that Members of this Committee would sit and 
attempt to undermine the very framework in which we guide 
ourselves in the three branches of Government. I have heard 
language from my distinguished friend suggesting we draw a 
line, drawing a line. What I would offer to say to my 
colleagues is this amendment tracks the Constitution and gives 
authority to the appellate courts by restating the provisions 
in the Constitution, and simply says that we stand by that 
document and the rightful role of the Federal courts.
    Drawing a line means setting precedent in this body, which 
means for every legislative initiative, every act in the State, 
we will take it upon ourselves to draw the line. Mr. Chairman, 
I believe that would wreak havoc on any suggestion that there 
is a democracy in this country.
    I have also heard a variety of expressions of allowing 
loving relationships and others who would challenge whether or 
not the idea of relationships between individuals not of 
differing sexes or differing sex would then educate or suggest 
to embryonic status, or those that are embryos and born, in the 
first 3 or 4 hours of their life that they would then choose to 
be one or the other. I am not a scientist, sociologist, nor do 
I think there are many in this room, psychologists, that can 
give me a definitive position on a different lifestyle, and 
thereby I have no information as to what and who would make 
changes in their life on the basis of this particular statutory 
law that we are deciding. I don't think anyone in this body 
does. And so, therefore, to bring in our social and religious 
perspective to this room, I don't disrespect your religious or 
political perspective, but you are utilizing that to undermine 
the infrastructure of Government, the three branches of 
Government and the constitutional underpinnings or the 
constitutional language of the Article III courts.
    What I see in this particular statute that has been offered 
by my good friend from Indiana is the drawing of the line on 
every single social issue, every single political issue, every 
single contractual issue that comes before us. That means we 
will write legislation because we disagree with the court's 
interpretation on every matter that occurs in States, in law 
and in equity.
    I believe that is wrong, and so this particular amendment 
speaks to that question by simply suggesting that the appellate 
courts--that Article III courts retain their rights under 
Section 2 of Article III, and also to refer my colleagues to 
this language, that these courts would then have the authority 
to address matters, controversies between two or more States, 
between a State and citizens of another State, between citizens 
of different States, between citizens of the same State 
claiming lands under grants of different States, and between a 
State or the citizens thereof and foreign states, citizens or 
subjects.
    I frankly do not understand why we would offer to utilize 
this particular amendment to begin to unravel a system that we 
have utilized and has worked. I conclude my remarks by saying 
this: As I opened in the general debate, that there was a 
Supreme Court decision that took place in 2000. I listened 
keenly and carefully, but at that time that that decision was 
rendered----
    [The prepared statement of Mr. Conyers follows:]

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress From the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary

    I rise in support of this amendment, which would preserve Supreme 
Court review of the Defense of Marriage Act.
    In their zeal to score political points in an election year, the 
President and conservative Republicans have raised the issue of same 
sex marriage. They seem not to care that this issue is more likely to 
divide the nation than unite it.
    Because they know they cannot pass a constitutional amendment to 
ban same sex marriage, they are trying to prevent court review of their 
other discriminatory law, the 1996 Defense of Marriage Act.
    This shows the Republicans are afraid that a law they passed eight 
years ago is unconstitutional. What is the Republican remedy? It is not 
to repeal the unconstitutional law but to block court review of it. 
That is typical--if people won't like your dirty laundry, don't let it 
get aired.
    I think my colleagues on the other side of the aisle would support 
this because, in the Winter of 2000, they strongly believed in the 
abilities of the Supreme Court.
    This amendment also would cure a constitutional problem with the 
underlying bill. The Constitution and Marbury v. Madison state clearly 
that it is the province of the courts to interpret and review federal 
laws. The Constitution does not say Congress can prevent the Supreme 
Court from reviewing discriminatory and bigoted laws.
    I urge my colleagues to vote ``Yes'' on this amendment.

    Chairman Sensenbrenner. The gentlewoman's time has expired.
    Ms. Jackson Lee.--no one referred to the Supreme Court as 
the crown. I simply ask my colleagues to support this amendment 
and restore us back to the three branches of Government and the 
Constitution.
    I yield back.
    Chairman Sensenbrenner. The Chair recognizes himself in 
opposition to the amendment.
    The way this amendment is drafted is that it goes much 
further than dealing with the Defense of Marriage Act or issues 
relating to marriage, but it gives unlimited jurisdiction to 
the Federal courts under all laws of the United States, the 
Constitution and treaties whether this relates to DOMA or 
anything relating to marriage, whether it is same-sex marriage 
or opposite-sex marriage. It involves everything.
    Let me just give a partial list of major legislation that 
limited court jurisdiction that was passed in the last 
Congress. We have talked extensively about Senator Daschle's 
language protecting the Black Hills Forest from the National 
Environmental Protection Act and other environmental laws. The 
Terrorism Risk Insurance Act that was passed after 9/11 
prevented judicial review from a certification of or a 
determination that something was an act of terrorism, which 
triggered the coverage under this law. The Small Business 
Liability Relief and Brownfields Revitalization Act, the 
Department of Justice Authorization Act, the Andean Trade 
Promotion and Drug Eradication Act, the American Service 
Members Protection Act, the Public Health Security and 
Bioterrorism Response Act, the Aviation Security Act, to 
expedite the construction of the World War II memorial in the 
District of Columbia, and the Small Business Investment Company 
Act--Amendments Act of 2001. Now, that is these laws, and this 
was just in the last Congress, but have the restrictions or 
limitations on judicial review been overridden by the 
gentlewoman's amendment?
    Ms. Jackson Lee. Would the gentleman yield?
    Chairman Sensenbrenner. I will yield in a second.
    So this amendment is drafted in a far broader manner where 
the Congress, in many areas that has nothing do with same-sex 
marriage or the Defense of Marriage Act, has made a 
determination to try to expedite action by limiting judicial 
review or making an action not subject to judicial review 
whatsoever. For this reason this amendment should be rejected, 
and I now yield to the gentlewoman from Texas.
    Ms. Jackson Lee. I thank the distinguished gentleman for 
recounting a number of legislative acts that support my 
position in the three branches of Government. We do have checks 
and balances. I would offer to the distinguished Chairman that 
none of the laws that he has recited prevents a constitutional 
review by the courts of constitutional questions that would 
arise under those legislative initiatives. All my amendment 
does is restate the fact that the courts under Article III have 
their rights, appellate and otherwise, to review questions that 
come before them. It is not broad to the extent that that is 
the bottom line.
    Chairman Sensenbrenner. Reclaiming my time. This is not the 
way the gentlewoman has drafted her amendment. The grant of 
unlimited jurisdiction on all issues relates to all cases of 
law and equity arising under this Constitution, the laws of the 
United States and treaties. So, again, it is a much broader 
amendment that goes far beyond the topic of same-sex marriage, 
and I believe it ought to be rejected.
    Mr. Nadler. Mr. Chairman----
    Chairman Sensenbrenner. The gentleman from New York.
    Mr. Nadler. Mr. Chairman, let me say that I support the 
amendment. Having said that, the balance of my comments will be 
devoted to the bill in chief, and I simply want to observe that 
despite all the sentiment drawing on both sides of the aisle, 
if you really read this bill and consider it carefully, the 
effect it will have will be zero. This bill will do nothing 
whatsoever on this controversy.
    And the reason I say that is the following: Imagine how 
this will come--how this bill would operate in practice. 
Imagine how this whole situation could come up in court. Some 
gay couple gets married in Massachusetts and moves, let's say, 
to New York. Some controversy arises. One of them dies 
intestate, and a controversy arises over the intestacy, and a 
New York surrogates' court decides either that the marriage was 
valid in New York because New York does not have a public 
policy objection and recognizes the Massachusetts marriage, or 
the New York surrogates' court decides that the marriage is not 
valid because New York has a public policy objection and will 
not recognize the Massachusetts marriage. Those are the two 
options.
    In the first case, if the New York court recognizes the 
marriage and says, we do not have a public policy objection, 
there is no Federal case whatsoever, and this whole thing is 
irrelevant. In the other possibility, where the New York court 
says that New York's public policy objects to gay marriage, and 
therefore New York will not recognize the Massachusetts 
marriage, the losing party would then go to Federal court and 
claim that New York's public policy objection, which normally 
States have a right to have a public policy objection under 
full faith and credit enforcement, but in this case the Federal 
claim would be that New York's public policy objection cannot 
be recognized because it violates the equal protection clause 
of the Federal Constitution. So the question before the Federal 
court would be whether or not New York's refusal to recognize 
the Massachusetts marriage because of its public policy 
exception violates the Federal equal protection clause or not. 
That decision is up to the Federal court. This bill has nothing 
to do with that.
    Now, someone might try to interpose DOMA and say, well, 
DOMA says that the State doesn't have to recognize what 
Massachusetts did, to which the reply would be, well, we think 
they do because of the equal protection clause, with or without 
DOMA. So DOMA is irrelevant because either the equal protection 
clause overturns the public policy exception the State has 
applied, or it doesn't. DOMA doesn't add to that and doesn't 
detract from that. So this bill, by saying that the Federal 
courts cannot adjudicate the constitutionality or meaning of 
DOMA, is irrelevant because DOMA itself is irrelevant to that 
question.
    Mr. Hostettler. Would the gentleman yield?
    Mr. Nadler. Yes, I will.
    Mr. Hostettler. I don't believe the DOMA is irrelevant 
because DOMA, likewise, exercises an explicit and exclusive 
constitutional prerogative with regard to full faith and----
    Mr. Nadler. Reclaiming my time. Being that--even given that 
fact, either the public policy exception of the State is valid, 
in which case DOMA is unnecessary, because we recognize the 
public policy exception of the State, or the Federal courts 
would hold the public policy objection invalid as in violation 
of equal protection. If the courts would hold that, DOMA can't 
fix that because you can't overturn a constitutional problem 
with a statute, even if the statute by itself is valid, 
because--so even if Congress had power to enact DOMA, which I 
don't question, even if the Congress had power to enact DOMA, 
which you say it did, and I agree, the fact is if the public 
policy exception violates the equal protection clause, then 
DOMA as applied in that context would also violate the equal 
protection clause. But in any event, it wouldn't be applied.
    So the point is this legislation, saying that you cannot--
that the Federal courts cannot adjudicate the validity of DOMA, 
doesn't deal with the question that it purports to deal with, 
because the question would not be DOMA, the question would be 
whether the State's public policy exception violates the equal 
protection clause or not, and that--the fact you cannot strip 
the courts of the ability to adjudicate, nor does this bill 
purport to do that.
    Chairman Sensenbrenner. The gentleman's time has expired. 
The question is on the----
    Mr. Hostettler. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Indiana.
    Mr. Hostettler. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hostettler. The gentleman kept referring to a, quote, 
public policy exception, end quote, which is, my understanding, 
a construct of the Federal judiciary. And what you are asking 
us to consider is that this public policy exception, quote, 
public policy exception, end quote, that has been constructed 
by the court is going to be adjudicated by the court vis-a-vis 
the equal protection clause that the court has created the 
doctrine concerning. And so what you are saying is that, in 
effect, there is no full faith and credit provision that could 
ever be enacted by Congress.
    Mr. Nadler. Would the gentleman yield?
    Mr. Hostettler. Just 1 minute and then I will yield.
    There is no full faith and credit provision that the 
Congress could ever enact and the President sign into law that 
the court could not overturn, because you have two constructs 
that are created by the court to judge a constitutional 
prerogative of the Congress.
    I yield to the gentleman.
    Mr. Nadler. No, I think you have it backwards. The public 
policy exception is a construct of the court.
    Mr. Hostettler. Yes.
    Mr. Nadler. But remember, the people who are opposed to gay 
marriage are afraid that if Massachusetts recognizes the gay 
marriages, the full faith and credit clause may force every 
other State to do so. The public policy exception says, wait a 
minute. The full faith and credit--and this is a construct of 
the courts for the last 150 or 200 years--says that the State 
need not--under the full faith and credit doctrine need not 
recognize an action of another State if it violates the public 
policy of the court. Therefore, the State need not recognize 
the gay marriage.
    Now, the question then is in order to protect the State 
against recognizing a gay marriage, which you would want to do, 
but I would not want to do, the question, therefore, one would 
say that the public policy exception is all that is necessary. 
And it is all that is necessary unless the courts would hold 
that its application in this case violates the equal protection 
clause. That is the only question that would be before the 
court. DOMA and, therefore, this bill would never arise.
    Mr. Hostettler. Reclaiming my time. Once again, there are 
two constructs of the court. And I will remind the gentleman 
that in Lawrence v. Texas the majority opinion was not an equal 
protection argument. It was a due process argument. Equal 
protection was a concurring opinion by one Justice, Sandra Day 
O'Connor. And so what you are saying is that equal protection, 
due process, any other construct of the court, that they can--
that they see in the Constitution that they want to use as the 
excuse of the day to overturn any full faith and credit 
provision that Congress has enacted according to our Article 
IV, Section 1, there is nothing that we could do. And so that 
is why we must assert our constitutional authority.
    Mr. Nadler. Would the gentleman yield?
    Mr. Hostettler. I have yielded quite a bit of time. Let me 
just try to make my point.
    What you are saying, that because the Court has created a, 
quote, public policy exception, end quote, and because the 
Court applies equal protection to whoever it wants to and due 
process to whomever it wants to, and any other construct that 
they can find two or three words in the Constitution that they 
want to apply to any particular provision, that you have said, 
just as Dr. Gerhardt said here a couple of weeks ago, that 
Congress can do nothing. He couldn't tell us if Congress could 
repeal a previous law. He couldn't tell us if Congress could 
impeach someone without any impediment by the Court. He 
couldn't even say that--with clarity that the President could 
pardon someone after they had been convicted and their 
conviction upheld by the Supreme Court.
    You are telling us, and Dr. Gerhardt has told us, that 
Congress can only do--regardless of the explicit and exclusive 
authority all over the Constitution, Congress cannot do those 
things that the court doesn't want it to do.
    Mr. Nadler. Now would the gentleman yield?
    Mr. Hostettler. And so that is why--that is why the idea of 
a public policy exception, a construct of the court, is not a 
construct of the Constitution.
    Ms. Jackson Lee. Would the gentleman yield?
    Mr. Hostettler. And that gives us the authority to deal in 
this situation with regard to the Defense of Marriage Act.
    Mr. Nadler. Now would the gentleman yield?
    Mr. Hostettler. And it gives us the authority to decide the 
jurisdiction of the inferior Federal courts and the Supreme 
Court.
    And I yield to the gentlelady from Texas Ms. Jackson Lee.
    Ms. Jackson Lee. I just want to say one point. You are 
suggesting that we cannot at any time have appellate authority. 
I yield to--I yield back.
    Chairman Sensenbrenner. The gentleman's time has expired. 
The question is on the Jackson Lee amendment to the amendment 
in the nature of a substitute.
    Mr. Scott. Mr. Chairman, I move to strike the last word
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. I yield to the gentleman from New York.
    Mr. Nadler. Thank you. Thank the gentleman for yielding. I 
think the gentleman Mr. Hostettler simply doesn't understand 
the key point. Whatever he wants to say about construct, et 
cetera, the key point is very simple. The issue that would be 
before a Federal court is whether--the only issue that would be 
before a Federal court is whether a State's refusing to enforce 
a gay marriage or recognize a gay marriage from a different 
State violates the equal protection or perhaps the due process 
clause of the Constitution.
    I maintain that under the case law, Congress would have no 
power to strip the Federal courts of the ability to adjudicate 
that question. You have to give a Federal forum for a Federal 
constitutional right.
    But that question aside, that doesn't arise under this bill 
because this bill doesn't deal with that. This bill simply says 
you can't adjudicate questions arising under DOMA. The question 
would not arise under DOMA. Therefore, this bill is irrelevant, 
whether what you say is true or not.
    I yield back.
    Mr. Hostettler. Would the gentleman from Virginia yield for 
a question?
    Mr. Scott. I yield.
    Mr. Hostettler. I thank the gentleman for yielding, and I 
ask the gentleman from New York a question, and that is very 
simply this: Do you believe that according to the Constitution 
or according to Marbury v. Madison or whoever you want to 
quote, whatever source you want to quote, that the Supreme 
Court has the authority to overturn any act of the United 
States Congress passed by Congress, signed into law by the 
President? Do you believe that they have the authority to 
invalidate any act that they deem repugnant, in Marshall's 
words, quote, repugnant to the Constitution, end quote; do you 
believe that?
    Mr. Nadler. If they believe it is repugnant to the 
Constitution, yes. That was Marbury v. Madison, and that has 
been the constitutional history of this country for the last 
200 years.
    Mr. Hostettler. I thank the gentleman.
    Mr. Weiner. Will the gentleman yield?
    Mr. Scott. I will yield.
    Mr. Weiner. You know, I am actually eager to know what the 
multiple choice part of that question would be. I mean, who are 
the other options? I mean, what are the other choices that we 
are presented with? Is it going to be like American Idol, or 
are we going to do it that way, just have people vote in on 
their phones?
    Yeah, this is an imperfect system that the Constitution was 
strangely silent on, and we allowed men of good faith to come 
up with--hopefully come up with a great idea, and I think John 
Marshall--and we are going to vote on a resolution today 
creating a coin in his honor, and in the very text of the 
resolution, it refers to the things that we praise him for in 
the resolution. If you will permit me, I will read--this is the 
resolution we are voting on today. It is a very long list of 
sponsors. You may be among them.
    Under his leadership, the Supreme Court of the United 
States gave shape to the fundamental principles of the 
constitution, most notably the principle of judicial review.
    The gentleman to your immediate left probably wrote this. 
This is his resolution.
    So the answer is I would be eager to hear if there is 
another choice that we can be presented with, because it 
certainly isn't going to be Congress to say what Congress--and 
I would make one further point that seems to get lost here. Let 
us remember the courts are created as the place to protect the 
minority. The majority has the Legislature. The majority has 
the executive. Majority has the power to amend the 
Constitution. The minority has only one place, and that place 
is the courts, and we feel so--that that is so important that 
the minority have that rule, the only way to have them trump--
and I have to tell you, I have heard so much today about the 
overreaching judiciary. You know, on our side we haven't won 
one of these cases in a while. We had an overreaching--we 
should be the ones complaining about it. We had the guys across 
the street choose our President incorrectly. We should be the 
ones complaining. But you know what? We are taking our lumps. 
Marbury v. Madison was soundly decided. We have no other 
choice. We have to leave it to men and women of good faith to 
interpret the law. And the overreaching judiciary, they are 
overreaching in your favor. It should be us complaining about 
all of this, except we are here defending them, and Lord knows 
why.
    And I yield back.
    Chairman Sensenbrenner. The time still belongs to the 
gentleman from Virginia. The question is on the Jackson Lee 
amendment to the amendment in the nature of a substitute. Those 
in favor will say aye.
    Opposed, no.
    Ms. Jackson Lee. Ask for a rollcall.
    Mr. Sensenbrenner. The noes appear to have it.
    Ms. Jackson Lee. I ask for a rollcall, Mr. Chairman.
    Chairman Sensenbrenner. Pursuant to Committee rule 2(h)1, 
the Chair will postpone the rollcall on this amendment until 
after we reconvene following the votes.
    Pursuant to subsection 2, the Chair will notify Members 
that this vote will take place following the first rollcall on 
an amendment that will be voted on after the recess.
    Are there further amendments?
    Mr. Scott. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Virginia Mr. 
Scott.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Mr. Chairman, I don't have an amendment.
    Chairman Sensenbrenner. The gentleman from Virginia will 
supply the clerk with an amendment.
    The Clerk. Amendment to the amendment in the nature of a 
substitute to H.R. 3313 offered by Mr. Scott of Virginia. Add 
at the end the following new section.
    Mr. Scott. Mr. Chairman, I move that the reading of the 
amendment be waived.
    Chairman Sensenbrenner. Without objection, so ordered.
    [The amendment to the amendment in the nature of a 
substitute offered by Mr. Scott of Virginia follows:]



    Chairman Sensenbrenner. And I think this is a good time to 
take a recess, so the Committee will be recessed until 30 
minutes following the conclusion of the last of the series of 
votes that will be called on the floor within the next 15 to 30 
minutes. The Committee stands in recess.
    [Recess.]
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    When the Committee recessed earlier today, pending before 
the Committee was a motion to report the bill, H.R. 3313, 
favorably to the House. An amendment in the nature of a 
substitute was offered by the Chairman. The gentleman from 
Virginia Mr. Scott offered an amendment to the amendment in the 
nature of a substitute, which--which the reading was dispensed 
with, but the gentleman from Virginia had not been recognized 
in support of his amendment.
    The gentleman from Virginia is now recognized for 5 minutes 
in support of his amendment.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, this amendment would allow the prevailing 
party in the case against the United States involving H.R. 3313 
to recoup reasonable attorney's fees including litigation 
expenses and costs as part--if part or all of H.R. 3313 is 
found unconstitutional by the presiding court, as many of us 
expect it will.
    The laws of this country traditionally protect people from 
losing constitutional rights they currently possess. Federal 
courts are empowered to hear cases and circumstances in which 
those rights have been infringed upon. This bill is an 
undisguised attempt to prevent Federal courts from hearing 
cases relating to rights, benefits and protections that are 
guaranteed under our Constitution, including the due process 
and equal protection clause of the Constitution.
    Within our constitutional framework, although Congress is 
expected to follow the Constitution, it is not for this 
Congress to make the final decision as to what is 
constitutional and what is not. Since Marbury v. Madison in 
1803, I guess, until the gentleman from Indiana spoke earlier 
today, there has been a consensus that the United States 
Supreme Court would be the final arbiter of what is 
constitutional and what is not.
    On June 24, the Constitution Subcommittee held a hearing on 
the issue of limiting Federal court jurisdiction to protect 
marriage for the States. Michael Gerhardt, professor of law at 
William and Mary Law School, testified that while Congress does 
have the authority to regulate Federal jurisdiction, the power 
is not unlimited, and that an act to totally prevent the 
Federal courts from ensuring that a State complies with the 
Constitution will be unconstitutional. He also testified that 
it is unconstitutional for the Congress to withdraw 
jurisdiction in such a way that eviscerates the Supreme Court's 
basic function in deciding cases arising under the Constitution 
and ensuring finality and uniformity in the interpretation and 
enforcement of Federal law.
    This bill violates that principle and attempts to prevent 
Federal courts from deciding cases involving the Defense of 
Marriage Act that call into question the full faith and credit 
clause as well as provisions of the 5th and 14th amendments to 
the Constitution. It thereby usurps the court's ability to 
create a uniform standard for States to follow, and instead 
allows each State to interpret and decide whether to grant or 
deny constitutional rights on an individual State basis.
    Professor Gerhardt was not the only witness to caution 
against the drastic step of court-stripping. Martin Redish, 
professor of law at Northwestern Law School, agreed that there 
are limits to the power of Congress to limit Federal court 
jurisdiction, including the due process clause, equal 
protection, and the concept of separation of powers. Professor 
Redish also testified that Congress cannot remove Federal 
jurisdiction in a discriminatory manner, as this bill obviously 
does.
    Mr. Chairman, this bill violates many constitutional 
principles. If it were to be found constitutional, there would 
be no prohibition against boilerplate language stuck in every 
bill we pass stripping judicial review from every bill that we 
consider, on each statute that would be passed. If it is 
constitutional, I would frankly be glad that nobody thought of 
that before 1954 where they could have stripped the court from 
jurisdiction from reviewing segregation in public schools; or 
before the 1960's, when activist judges required Virginia to 
recognize racially mixed marriages. Since the Dred Scott 
decision was mentioned earlier today, I am glad that no one 
stripped the Court from the possibility of reversing itself on 
that case, or Plessy v. Ferguson, the separate but equal 
decision.
    Mr. Chairman, since we defeated the Baldwin amendment, I am 
glad no one thought of allowing the States, State courts and 
State legislatures to decide for themselves the constitutional 
issues involving civil rights. If it is constitutional, Mr. 
Chairman, some States will rule that DOMA is, in fact, 
unconstitutional; other States, it is constitutional because of 
the public policy exception applies. In fact, the prior 
hearing, Judge Robert Bork implied that the full faith and 
credit may apply to marriages and civil unions whether or not 
the Musgrave amendment may pass. If this bill--but maybe not to 
marriages if the amendment passes, but certainly to civil 
unions. So if this bill passes, there will be no Federal rule. 
Some States will adopt full faith and credit principles; others 
will not. A Massachusetts or Vermont couple moving to another 
State may have their relationship recognized in some States and 
not in others.
    Mr. Chairman, I ask for 1 additional minute.
    Chairman Sensenbrenner. Without objection.
    Mr. Scott. Mr. Chairman, this bill violates many 
constitutional principles and undermines the credibility of our 
system of Government for those reasons. And therefore, all of 
that said, if we pass this law and force someone to challenge 
it, that person should not have to pay out of his or her pocket 
to prove the unconstitutionality of our actions.
    Similar attorney's fees provisions exist in other areas of 
the laws where it has been necessary to file suit to vindicate 
civil rights in employment cases and other civil rights 
actions. For example, Federal law allows the court in its 
discretion to award reasonable attorney's fees to a prevailing 
party in an action brought pursuant to the Americans with 
Disabilities Act. Likewise, we should not force any American to 
pay exorbitant costs associated with litigation in order to 
have a court rule that this thing is unconstitutional.
    For all of these reasons, Mr. Chairman, I ask my colleagues 
to support the amendment.
    Chairman Sensenbrenner. The gentleman from Indiana Mr. 
Hostettler.
    Mr. Hostettler. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hostettler. Thank the Chairman.
    Mr. Chairman, I rise in opposition to the Scott amendment. 
First, this amendment applies to cases brought against the 
United States. This bill only applies to the part of DOMA that 
states no State shall be required to accept an out-of-State 
same-sex marriage license. In any case brought to challenge the 
constitutionality of this bill, the defendant would be the 
entity granting or not granting recognition to a particular 
marriage. States and not the United States grant marriage 
licenses in this country. So the United States would not be the 
proper party.
    Second, even if this amendment were made to apply to proper 
defendants, this amendment would allow Federal courts to not 
only define the limits of their own power, but it would allow 
Federal courts to tax the States, because the States would be 
the very victims of the Federal court's usurpation of 
authority. And so I oppose the amendment, Mr. Chairman.
    At this time, Mr. Chairman, I would like to ask unanimous 
consent that section 2 of a report, a CRS report for Congress, 
Congressional Checks on the Judiciary, would be entered into 
the record.
    Chairman Sensenbrenner. Without objection.
    [The material referred to follows:]
    
    
    Mr. Hostettler. And I will read from that, because I 
believe that we need to put the case Marbury v. Madison, 
especially this day when we will be voting on a commemorative 
coin for the former Chief Justice, in proper context, in that 
Lewis Fisher, who is senior specialist in separation of powers 
for the Government Division of the Library of Congress, says, 
quote, Chief Justice Marshall's decision in Marbury represents 
what many regard as the definitive basis for judicial review 
over congressional and Presidential actions.
    But Marshall's opinion stands for a much more modest claim. 
He stated that it is, quote, emphatically the province and duty 
of the judicial department to say what the law is, end quote. 
So it is that Congress and the President are also empowered 
under the Constitution to, quote, say what the law is, end 
quote.
    Marshall's statement can stand only for the proposition 
that the court is responsible for stating what it thinks a 
statute means, after which Congress may enact another law to 
override the court's interpretation. The court states what the 
law is on the day the decision comes down. The law may change 
later. Several examples of this institution in the interplay 
will be identified in this report.
    Fisher goes on to say, quote, it is evident that Marshall 
did not think he was powerful enough in 1803 to give orders to 
Congress and the President. He realized that he could not 
uphold the constitutionality of section 13 of the Judiciary Act 
of 1789 and direct Secretary of State James Madison to deliver 
the commissions to the disappointed would-be judges.
    Now why did he know that couldn't happen? The reason is 
this: President Thomas Jefferson and Madison would have ignored 
such an order. Everyone knew that, Fisher says, including 
Marshall. As Chief Justice Warren Berger noted, quote, the 
Court could stand hard blows, but not ridicule, and the 
alehouses would rock with hilarious laughter had Marshall 
issued a mandamus that the Jefferson administration ignored. 
And so we thinking much more highly of this decision of Marbury 
v. Madison than we ought to think.
    And I will close, Mr. Chairman, by quoting from a 
distinguished former jurist that said in a Pulitzer Prize-
winning book of Albert Beveridge, quote, I think the modern 
doctrine of impeachment should yield to an appellate 
jurisdiction in the Legislature. A reversal of those legal 
opinions deemed unsound by the Legislature would certainly 
better comport with the mildness of our character than would a 
removal of a judge who has rendered them unknowing of his 
fault, end quote.
    The question is who is the heretic that suggested that 
there is appellate jurisdiction in the Legislature for the 
Supreme Court? Well, it was a gentleman--it was actually in 
this book, a biography of a gentleman by the name of John 
Marshall, who said in a letter to Justice Samuel Chase that, in 
fact, the Legislature, the Congress, is the appellate 
jurisdiction for a, quote, opinion deemed unsound by the 
Legislature.
    Mr. Chairman, I oppose this amendment, and I would ask my 
colleagues to support the underlying bill so that we do not 
have to deem a future decision by the Supreme Court unsound, 
and I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from North Carolina 
Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    I rise in support of Mr. Scott's amendment. Ithink there is 
going to be, I suspect, a substantial amount of litigation 
associated with this provision if it passes, and it would be a 
shame that private litigants would have to try to sort this out 
without benefit of having their fees paid just because we are 
here engaged in a political act that substantially undermines a 
constitutional principle.
    Having said that, I would like to ask the Chairman a 
question that has been raised to me, and I am not sure that I 
have a good answer to it. And I think the Chairman is probably 
better prepared to--much better prepared to answer that 
question than Mr. Hostettler, since it is the Chairman's 
substitute that we are dealing with.
    Under the bill, I am wondering whether a defendant could 
remove a case, any kind of case, under this statute to the 
Federal courts, and whether, given the language of the 
amendment in the nature of a substitute, the Federal courts 
would then have to dismiss the case; and if under those 
circumstances the case was dismissed, whether that would 
deprive a litigant of any determination either by a Federal or 
State court of constitutionality. And I will yield to the 
gentleman.
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Watt. Yes, sir.
    Chairman Sensenbrenner. I am not intimately familiar with 
the removal statute, but if the Federal court does not have 
jurisdiction over the case, my belief is that the Federal court 
would be constrained to deny the motion to remove, and thus the 
case would continue to be pending in the State court.
    Mr. Watt. I hear--and I guess that makes a lot of sense, 
except that on line 11 of the substitute, you say that no court 
or the Supreme Court on an appeal can hear or decide any 
question pertaining to the interpretation of. So if the case 
were tried to be removed, who would make a determination of 
even the ability to remove it under those circumstances? And if 
the Court decided that----
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Watt. Wouldn't it be deciding the ultimate 
constitutionality, or would that be improper, or could it go 
back to the State court to even have a State court----
    Chairman Sensenbrenner. My understanding is that the 
removal statute is a discretionary statute.
    Mr. Watt. Well, somebody has to exercise the discretion is 
the point I am trying to make. Who under these circumstances 
would exercise that discretion?
    Chairman Sensenbrenner. Well, it would be the Federal 
district judge that would determine if the matter was not 
removable under the Federal law because the Federal district 
court did not have jurisdiction.
    Mr. Watt. Wouldn't that be any question pertaining, or 
would it not? I just raise that as an academic proposition.
    Chairman Sensenbrenner. Well, if the gentleman will yield 
further. Say there is a suit that is filed in the Federal 
district court that the court----
    Mr. Watt. I am talking about a suit that is filed in the 
State court and then a motion to remove it filed to the Federal 
court. Who would then decide that if under the statute you are 
saying----
    Chairman Sensenbrenner. If the gentleman will yield, it 
would be the Federal district judge, as a Federal district 
judge would decide a motion to dismiss a case that was 
originally filed in the Federal court if the court had no 
jurisdiction over it. There would be a motion to dismiss, and 
the court would have to grant it.
    Mr. Watt. I will yield to Mr. Scott.
    Mr. Scott. I would ask the same question in a slightly 
different way. The case may have a lot of different parts to 
it, and if it is removed, the Federal court would not be able 
to rule on any of this part of it, would have the rest of the 
case before it. So if the plaintiff's argument is that the law 
is unconstitutional the--that the DOMA is unconstitutional, or 
constitutional, you don't get to review that, and you lose, 
most of the rest of the case is sitting there. I don't know 
what happens to it.
    Mr. Watt. Well, I think that is the question I am raising. 
I--it is one thing to say that the Federal courts and the 
Supreme Court don't have jurisdiction to decide a 
constitutional question, but I think we may be setting up a 
trap here where no court, not even the State courts, end up.
    Chairman Sensenbrenner. The time of the gentleman from 
North Carolina has once again expired.
    For what purpose does the gentleman from New York seek 
recognition?
    Mr. Weiner. To briefly strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for a 
brief 5 minutes.
    Mr. Weiner. Just in response to my good friend from 
Indiana, and it seems mysterious to me about why in the context 
of this amendment you truly want to relitigate Marbury v. 
Madison. But if we are going to, let us not learn the wrong 
lessons.
    The experience in Marbury v. Madison, and one of the 
reasons that we honor John Marshall today on the floor of 
Congress, was that in the same decision he ruled that that 
court ruled they had the authority to overrule congressional 
acts, but also demonstrated something else that the present 
Supreme Court hasn't, which is that sometimes you use restraint 
by not doing so. And by not striking down the Judiciary Act of 
1789, they showed restraint.
    Now, the question that you continue to raise is should this 
be the way it is done. And maybe it is not. I would argue it is 
the most settled of settled law, the most settled, because, 
frankly, without this interpretation and without this ruling, 
virtually there is no place that the buck stops.
    And you posited or you read from someone's article exactly 
the way the system works. If Congress has a law stricken down, 
they ultimately do have the last word in a strange way. They 
can go back--we can go back and change the law and change it 
again and keep trying. I mean, for those of you who are 
familiar with the debate over late-term abortion, you know that 
is exactly what this panel does every 6 months, get struck 
down. You change the words, you go back, you do it again. It 
serves their political needs, but it also is an exercise for 
even the most rudimentary student of the Supreme Court for how 
the system works.
    Yeah, we can keep trying, we can keep trying, and that is 
the example that whoever's article you read from was talking 
about; that if you are really concerned about judicial 
overreaching, you can go back and go back. But at the end of 
the day, the threshold test of whether something is violative 
of the Constitution of the United States of America only can be 
handled one of two ways: The courts rule that it is or is not, 
or an overwhelming majority of American citizens change the 
Constitution. Those are the only two choices that we have.
    If you want to create a third choice, which is Congress 
gets to do it without judicial review, you will be rolling back 
201 years of jurisprudence in this country that has, in many 
cases, I am sure you would agree, served your interests well. 
Sometimes it hasn't, but it is the only option that we have.
    We have to leave this to smart hopefully, judicious 
hopefully, restrained hopefully men and women, flesh and blood, 
to finally say, look, you did the best you could, but, no, you 
didn't pass constitutional muster here.
    It is remarkable to me that in the context of this bill you 
freely admit you want to relitigate Marbury v. Madison. I would 
be surprised if you got 10 votes on the floor of Congress for 
the idea that Marbury v. Madison was wrongly settled law. I 
mean, where does that leave us? That leaves us with the 
scenario where conceivably the Supreme Court can choose one 
President, Congress can choose a different President, and who 
settles the dispute? And you have a constitutional crisis.
    John Marshall was brilliant. His decision that you deride 
was a brilliant compromise. It was a way to get out from under 
the problem of the political fight that was going on at that 
time between the Federalists and the Republicans. It was a way 
to answer this question about who is in charge, and it has 
served this country remarkably well; so well, in fact, that 
today I was proud to cast a vote to dedicate a coin in his 
honor in a piece of legislation authored by the good gentleman 
to your left.
    It was really a master stroke, and it reminded us of 
something else. It reminded us, I say to the gentleman from 
Indiana and my colleagues on the Majority, you win some and you 
lose some. There is nothing about this deal that says you have 
to win every single one. You know, you have won some very 
important cases recently with a court that has become 
increasingly conservative. It doesn't mean you win every single 
case. You are going to lose a couple. You are going to lose 
some.
    And we all essentially buy into this, and we teach in 
constitutional law classes, in high school classes about what 
it is in that building across the way with the nine pillars, 
what they do there. What they do there is take work that we do, 
with all of our best instincts, and they decide when it comes 
running up against that document called the Constitution 
whether or not we have passed a basic threshold. They do it. 
Sometimes they get it wrong. Sometimes they get it right. But 
it is, I reiterate, the only available system that we have. And 
of all of the available worlds, it is the best of all available 
worlds, and I am----
    Chairman Sensenbrenner. The gentleman's brief 5 minutes has 
expired.
    Ms. Jackson Lee. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Alabama Mr. 
Bachus.
    Mr. Bachus. I thank the Chairman.
    Mr. Chairman, I would first like to--I move to strike the 
last word.
    Chairman Sensenbrenner. Gentleman is recognized for 5 
minutes.
    Mr. Bachus. Mr. Chairman, I am that famous man to your 
left, I think, that he keeps referring to that is going to 
bring the John Marshall coin bill to the floor later this 
afternoon, and I want the record to show that I will be 
honoring Justice Marshall. I will not be marrying him. So--and 
with that----
    Mr. Weiner. Imagine my relief.
    Mr. Bachus. Thank you.
    Ms. Jackson Lee. Mr. Chairman.
    Mr. Bachus. And with that I yield the balance of my time to 
the gentleman from Indiana.
    Mr. Hostettler. I thank the gentleman, and I want to, first 
of all, return to Marbury v. Madison and say how much I 
appreciate the fact that we are going to enter a copy of the 
decision in the record, because then many people may read it, 
especially on this Committee, because twice now the gentleman 
from New York has suggested that the Court did not strike down 
in Marbury v. Madison article 13, the Judiciary Act of 1789; 
that, in fact, Jefferson did.
    Marbury v. Madison, that is exactly what the Court did. The 
Court found article 13 of the Judiciary Act of 1789, quote, 
repugnant to the Constitution, end quote, and said that, quote, 
the Congress cannot give original jurisdiction to the Supreme 
Court where the Constitution only gives us appellate 
jurisdiction, end quote.
    And so it was the Court that created the political dodge, 
because as I pointed out earlier, and Chief Justice Warren 
Berger said it much more eloquently than I, that Marshall knew 
that Jefferson and Madison--Jefferson, the chief architect of 
the Declaration of Independence; Madison, the chief architect 
of the United States Constitution--were in no way going to seat 
the Federalist magistrates, Mr. Marbury and his associates. But 
he needed to find a way to get out of this very, very 
politically sensitive situation, and so he struck down the 
Judiciary Act, article 13 that gave original jurisdiction to 
the Supreme Court where the--as Marshall said, the Constitution 
only gives them appellate jurisdiction.
    So it will be fantastic, I think, for my colleagues to have 
the opportunity to actually read Marbury v. Madison and not, 
for example, to take the word of their law school professor to 
see what was actually determined in the case. And, in fact, 
they might want to go back and read the history of the 
situation with Mr. Marbury and his associates and find out who 
was the individual under Adams, as President of the United 
States, that was supposedly to have delivered the commissions 
that did not do so because he had been appointed to the United 
States Supreme Court.
    So I would hope that whenever we--my father used to say, 
before he passed away, from time to time that we learn 
something new every day. And so Members of this Committee who 
have spoken a lot about Marbury v. Madison because it is 
entered into the record will finally have the opportunity to 
learn something today when they read the decision.
    Mr. Weiner. Would the gentleman yield?
    Mr. Hostettler. It is actually the gentleman from Alabama.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Alabama.
    Mr. Weiner. Would the gentleman from Alabama yield for just 
a brief moment?
    Mr. Bachus. For a brief moment.
    Mr. Weiner. Yeah, sure. I just want to read--in keeping 
with what the gentleman from Indiana said, I am going to read a 
sentence from the decision: The judicial power of the United 
States is extended to all cases arising under the Constitution. 
Not the legislative power. Not the executive power. What this 
court did, it said that we take to ourselves the Supreme Court 
of the United States over all cases arising under the 
Constitution. That is in the case. My law school professor 
didn't tell me that, as you know, not ever having had one. This 
is in the decision, and it is fairly--it is about as clear as 
it gets.
    Mr. Bachus. Let me----
    Chairman Sensenbrenner. The gentleman from Alabama.
    Mr. Bachus. Let me simply say this. All Madison or Marbury 
v. Madison stands for is the proposition that the Supreme Court 
is the final authority on issues it decides, provided Congress 
by statute has granted the Supreme Court the authority to hear 
the issue in the first place. If you will read that decision, 
you will see that that is clearly what it said. In other words, 
Congress has to provide the jurisdiction in the first place, 
and it is that simple.
    Mr. Weiner. Would the gentleman yield on that point?
    Mr. Bachus. The case doesn't fall within the jurisdiction 
of the Federal courts because Congress has not granted the 
required jurisdiction, or removed jurisdiction. The Federal 
court simply can't hear the case. And the Supreme Court in the 
past in many decisions has dismissed cases in which it was not 
given----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Bachus.--jurisdiction to hear the case.
    Ms. Jackson Lee. Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from Texas. For 
what purpose do you seek recognition?
    Ms. Jackson Lee. Strike the requisite number of words.
    Mr. Chairman, I rise to support the amendment of the 
distinguished gentleman from Virginia, because I think, in 
part, it raises the specter of the very debate or the crux of 
the debate, and that is to reinforce rights as opposed to 
taking rights away.
    His amendment simply says, if you prevail in determining 
that this is an unconstitutional position, then attorney's fees 
are to be granted, which goes back to the point of my earlier 
amendment which simply recounts for the Members and adds to 
this legislation a restating of the responsibilities or the 
guidelines or the governance of the Article III Courts which is 
that the Supreme Court and the appellate courts have 
jurisdiction of all cases in law and equity arising under the 
Constitution, the laws of the United States and treaties.
    I guess if this was simply a debate on policy, a debate on 
your religious belief, your social belief, we delineate simply 
that, maybe, we would spend a couple of weeks dealing with 
this.
    But embodied in this amendment that Mr. Hostettler has 
offered is a cutting away of the appellate responsibilities of 
these Article III Courts, and we go back and forth about what 
the Congress can and cannot do. The preciousness of these 
Article III Courts is the fact that they do not close the doors 
to any petitioner who desires to seek relief. They may not come 
away with the relief they desire, but they have the opportunity 
to go inside the courthouse.
    As I reminded my colleagues, many of us were dissatisfied 
with the 2000 decision done by a Supreme Court. Our colleagues 
are also reminded by Mr. Weiner that, for many of us, that case 
is one that we might have chosen to rewrite the law. We did 
not. But we do, as a Congress, have the right, as we are 
receiving decisions that we dislike, we can come and go and 
come and go.
    This amendment cuts away at the very infrastructure of the 
Constitution. How in the world can we have three distinct 
branches when we are seeking, not to talk about policy, we are 
talking about procedure? We are talking about eliminating the 
appellate jurisdiction, the right of review, of these courts. 
That, in essence, is taking away rights and closing the 
courthouse door.
    I request that we support the amendment which grants 
attorney's fee but would hope that we be reminded that this 
amendment is not just about policy and whether or not you agree 
with a lifestyle or that you promote marriage. This is not the 
Federal Marriage Act. This is a cutaway at the very structure 
of the third branch of Government of which the Constitution 
says, in essence, the Supreme Court has final arbiter's power 
to make final decisions.
    I would ask that both the present or underlying bill be 
defeated but that the amendment of Mr. Scott be supported.
    Mr. Chairman, I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the Scott 
amendment to the amendment in the nature of a substitute. Those 
in favor will say aye. Opposed, no.
    The noes appear to have it. The noes have it.
    The amendment is not agreed to.
    The unfinished business is the recorded vote on the 
amendment by the gentlewoman from Texas, Ms. Jackson-Lee, to 
the amendment in the nature of a substitute upon which further 
proceedings were postponed.
    Those in favor of the Jackson-Lee amendment to the 
amendment in the nature of a substitute will, as your names are 
called, answer aye. Those opposed, no.
    The clerk will call the role.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble votes no. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot votes no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins votes no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon votes no. Mr. Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus votes no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler votes no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green votes no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller votes no. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart votes no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake votes no.Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence votes no. Mr. Forbes?
    Mr. Forbes. No
    The Clerk. Mr. Forbes votes no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King votes no. Mr. Carter?
    Mr. Carter.  No.
    The Clerk. Mr. Carter votes no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney votes no. Mrs. Blackburn?
    Mrs. Blackburn. No.
    The Clerk. Mrs. Blackburn votes no. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye
    The Clerk. Mr. Nadler votes aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott votes aye. Mr. Watt?
    Mr. Watt. Pass
    The Clerk. Mr. Watt votes pass. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren votes aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee votes aye. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters votes aye. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan votes aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin votes aye. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner votes aye.Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff votes aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez votes aye. Mr. Sensenbrenner?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Sensenbrenner votes no.
    Chairman Sensenbrenner. Are there Members in the Chamber 
who wish to cast or change their vote?
    The gentleman from California, Mr. Berman?
    Mr. Berman. Aye.
    The Clerk. Mr. Berman votes aye.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Smith?
    Mr. Smith. Mr. Chairman, I vote no.
    The Clerk. Mr. Smith votes no.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Goodlatte?
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte votes no.
    Chairman Sensenbrenner. Are there further Members in the 
Chamber who wish to cast or change their vote? If not, the 
Clerk will report.
    The Clerk. Mr. Chairman, there are 11 ayes and 19 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    If not, the question is on agreeing to the amendment in the 
nature of a substitute offered by the Chair. Those in favor 
will signify by saying aye. Opposed, no.
    The ayes appear to have it. The ayes have it, and the 
amendment in the nature of a substitute is agreed to.
    A reporting quorum is present.
    The question now is on the motion to report the bill, H.R. 
3313, favorably as amended. All in favor, say aye. Opposed, no.
    The ayes appear to have it.
    Mr. Nadler. Mr. Chairman, rollcall.
    Chairman Sensenbrenner. rollcall is ordered. Those in favor 
of reporting the bill favorably, as amended, will, as your 
names are called, answer aye. Those opposed, no.
    The Clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble votes aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith votes aye. Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly votes aye. Mr. Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte votes aye.Mr. Chabot?
    Mr. Chabot. Aye
    The Clerk. Mr. Chabot votes aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins votes aye. Mr. Cannon?
    Mr. Cannon. Aye
    The Clerk. Mr. Cannon votes aye. Mr. Bachus?
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus votes aye. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler votes aye. Mr. Green?
    Mr. Green. Aye
    The Clerk. Mr. Green votes aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller votes aye. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart votes aye. Mr. Flake?
    Mr. Flake. Aye.
    The Clerk. Mr. Flake votes aye.Mr. Pence?
    Mr. Pence. Aye
    The Clerk. Mr. Pence votes aye. Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes votes aye. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King votes aye. Mr. Carter?
    Mr. Carter.  Aye.
    The Clerk. Mr. Carter votes aye. Mr. Feeney?
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney votes aye. Mrs. Blackburn?
    Mrs. Blackburn. Aye
    The Clerk. Mrs. Blackburn votes aye.Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers votes no. Mr. Berman?
    Mr. Berman. No.
    The Clerk. Mr. Berman votes no. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler votes no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott votes no. Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt votes no. Ms. Lofgren?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren votes no. Ms. Jackson Lee?
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee votes no. Ms. Waters?
    Ms. Waters. No.
    The Clerk. Ms. Waters votes no. Mr. Meehan?
    Mr. Meehan. No.
    The Clerk. Mr. Meehan votes no. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    Ms. Baldwin. No.
    The Clerk. Ms. Baldwin votes no. Mr. Weiner?
    Mr. Weiner. No.
    The Clerk. Mr. Weiner votes no.Mr. Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff votes no. Ms. Sanchez?
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez votes no. Mr. Sensenbrenner?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Sensenbrenner votes aye.
    Chairman Sensenbrenner. Are there Members in the Chamber 
who wish to cast or change their votes?
    The gentleman from Virginia, Mr. Boucher?
    Mr. Boucher. Votes aye.
    The Clerk. Mr. Boucher votes aye.
    Chairman Sensenbrenner. Further Members in the Chamber who 
wish to cast or change their vote?
    If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 21 ayes and 13 noes.
    Chairman Sensenbrenner. The motion to report favorably is 
agreed to.
    Without objection, the bill will be reported favorably to 
the House in the form of a single amendment in the nature of a 
substitute incorporating the amendments adopted here today.
    Without objection, the Chairman is authorized to move to go 
to conference pursuant to House Rules.
    Without objection, the staff is directed to make any 
technical and conforming changes, and all Members will be given 
2 days, as provided by the House Rules, in which to submit 
additional dissenting, supplemental or minority views.
    The business for which this meeting was called having been 
completed, the Committee stands adjourned.
    [Whereupon, at 3:42 p.m., the Committee was adjourned.]

                            Dissenting Views



                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Robert Wexler.
                                   Tammy Baldwin.
                                   Anthony D. Weiner.
                                   Adam B. Schiff.
                                   Linda T. Sanchez.

                                  
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