The U.S. House of Representatives passed the Marriage Protection Act of 2004 (MPA) on July 22 by a vote of 233 to 194. The measure would strip federal courts of the authority to deal with issues concerning same-sex marriage. Opponents say it is unconstitutional and would set a dangerous precedent.

Social conservatives pressed for the bill and Republicans provided most of the votes in support of it. But 17 Republicans voted against it, enough to assure its defeat. The margin of victory was provided by 27 Democrats who crossed the other way and voted for the measure.

The silver lining in this defeat is that it fell far short of the two-thirds majority needed to pass a constitutional amendment such as the Federal Marriage Amendment (FMA), which failed July 14 in the Senate.

The MPA is a “court-stripping” measure introduced by John Hostettler (R-Indiana) last October as a fall back position to the FMA. It would remove authority for federal courts to hear cases on the Defense of Marriage Act (DOMA), which was passed in 1996. Plaintiffs could still seek relief in state courts.

Article II, Section 2, clause 2 of the U.S. Constitution deems that lower federal courts are the creation of Congress and, as such, Congress may limit their jurisdiction. The provision is a source of debate among legal scholars, and Congress has almost completely avoided testing the limits of this authority in this area.

Majority Leader Tom DeLay (R-Texas) opened with a plea for civility during the debate. The vitriolic rhetoric was in fact toned down, but the intent of anti-gay animus was not.

DeLay tied the concept of marriage to raising children and asserted, “The policy before us today would reaffirm the current national consensus on homosexual marriage by leaving it to the states and the American people the right to define marriage in this country.”

“Marriage is under attack,” argued Rep James Sensenbrenner (R-Wisconsin), chairman of the Judiciary Committee, who managed the Republican side of the floor debate. “What this bill will do is prevent a federal judge from exporting the decision of a divided court in a single state [Massachusetts] to the other states… We are restoring the federal system in an area that has always been conceded to be the province of the states.”

“More than anything else, today’s debate is about the politics of the national election,” countered Rep Jerrold Nadler (D-N.Y.), the floor manager for Democrats opposing the MPA. It was all about “taking time out to beat up on an unpopular minority.”

“This debate is not really about gay marriage… It’s about whether Congress can adopt unconstitutional legislation on any subject and protect that legislation from constitutional challenge by stripping the courts of the jurisdiction to consider any such challenge. We have never done that before in our history, and we should not do that now.”

“The very system of checks and balances is under attack with this bill,” Nadler charged. It has the potential “to render the Bill of Right meaningless… We are playing with fire with this bill, and that fire could destroy the nation that we love.”

African American representatives played a prominent role in opposing the MPA, drawing upon the legacy of their struggle for civil rights.

Ranking Democrat on the Judiciary Committee Rep. John Conyers (Mich.) said, “This will be the only instance in the history of the Congress that we have totally precluded the federal courts from considering the constitutionality of federal legislation.”

Conyers asked, “What would have happened had conservatives decided during the civil rights battles of the 1960s to just take the decisions away from the courts?”

“If it had not been for the federal courts, I would not be standing here today,” said Rep. John Lewis (D-Ga.), a veteran of those battles. “Today it is gay marriage, tomorrow it will be something else.”

The full power and grandeur of that movement filled Lewis’ voice when he urged his colleagues, “Forget about politics, vote with your conscience, vote with your heart, with your soul, with you guts – do what is right and defeat this bill.”

“Shame, shame, shame,” Rep John Dingell (D-Mich.) said in decrying the “extraordinary piece of arrogance” by the House in considering this legislation. “Can you imagine anything more shameful than telling an American citizen ‘You can’t go into court to have your concerns addressed?’”

“Every member of this body has taken a solemn oath to protect and defend the Constitution of the United States,” said Democratic Leader Nancy Pelosi (D-Calif.). She called on members to honor that oath and oppose the bill. “It is nothing more than an attempt to amend the Constitution by a simple majority.”

Rep. Barney Frank (D-Mass.) castigated the arguments of MPA proponents. “This does not take the matter out of the courts, it takes the matter of constitutionality away from the United States Supreme Court and confers it on the 50 state supreme courts.” He predicted that chaos would result.

He added that all previous use of court stripping provisions concerned administrative matters, not issues of constitutionality. The Congressional Research Service, in a report requested by Democrats, said it could find no precedent for Congress passing a law to limit federal courts from ruling on the constitutionality of another law.

Frank said, “Once you establish this, it will be demanded with regard to everything else. This will become boilerplate. On issue after issue we will pass legislation and we will say, but it cannot be corrected by the Supreme Court.”

Rahm Emanuel (D-Ill.) noted that half of all marriages end in divorce. If we want to protect marriage, “Why don’t we deny access to federal courts to divorcees?”

Tammy Baldwin (D-Wisc.), the only open lesbian serving in Congress and a member of the Judiciary Committee, made the closing remarks in opposition to the MPA. She argued that it says, “You may not defend your constitutional rights in this court. You may not see equal protection here. You may not petition your government for redress here. Today the ‘you’ is gay and lesbian American citizens, but who will be next?”

Matt Foreman, executive director of the National Gay & Lesbian Task Force, called it “a sad day for all Americans, not just because the House passed a bill that seeks to deprive gay and lesbian Americans access to federal courts...[but] because 233 members of Congress ignored their oath to protect and defend the Constitution of the United Sates by voting in favor of a measure that is blatantly unconstitutional.”

James Dobson, founder of Focus on the Family, had restrained praise for the vote. He asserted, “While this legislation will not protect marriage across the nation, it will prevent un-elected rogue judges in federal courtsfrom overturning the will of the people.”