**THE MARRIAGE PROTECTION ACT**

**U.S. REP. JOHN HOSTETTLER**

**WHAT IT DOES**

-   The Marriage Protection Act removes jurisdiction from certain
    federal courts over questions pertaining to the 1996 Defense of
    Marriage Act (DOMA).

-   The Marriage Protection Act will remove the Supreme Court's
    appellate jurisdiction, as well as remove inferior federal court
    original and appellate jurisdiction over DOMA's full faith and
    credit provision. This provision in DOMA codified that no State
    would be required to give full faith and credit to a marriage
    license issued by another State, if that relationship was between
    two people of the same sex.

-   The Marriage Protection Act also removes appellate jurisdiction from
    the Supreme Court and the inferior federal courts over DOMA's
    marriage definition provision, which defines the terms "marriage"
    and "spouse," for purposes of federal law as terms only applying to
    relationships between people of the opposite sex.

**WHAT IT MEANS**

-   This bill preserves each State's traditional right to determine its
    own marriage policies by preventing the federal courts from
    interfering with DOMA's full faith & credit provision (consistent
    with the 10^th^ Amendment to the U.S. Constitution).

-   Under the Marriage Protection Act, any question pertaining to the
    interpretation of DOMA's full faith & credit provision would be left
    to State courts and legislatures, where marriage law jurisdiction
    has traditionally resided (consistent with Article IV, Section 1 of
    the U.S. Constitution).

-   Under the Marriage Protection Act, any question pertaining to the
    interpretation of DOMA's marriage definition provision could reach
    no higher than federal district court.

-   Federal judges and Supreme Court Justices are not the elected
    representatives of the people, and the Marriage Protection Act will
    prevent federal courts from overstepping their duties and
    legislating from the bench regarding marriage policy.

-   Congress has a constitutional duty and authority to put a check on
    the Judicial branch. In light of recent federal court decisions that
    do not respect traditional areas of law reserved for the states, the
    federal courts could be only one decision away from creating a
    "right" to homosexual marriage (consistent with Article I, Section
    8, and Article III, Sections 1 & 2 of the U.S. Constitution).

**THE MARRIAGE PROTECTION ACT**

**U.S. REP. JOHN HOSTETTLER**

**BACKGROUND**

-   Congress passed the Defense of Marriage Act in 1996 for two
    reasons: 1) to defend the institution of traditional heterosexual
    marriage; and 2) to protect the right of the States to formulate
    their own public policy regarding same-sex unions, free from any
    federal constitutional implications that might go with one of those
    States creating a right for homosexual couples to acquire marriage
    licenses.

-   DOMA has two provisions. First, Congress used its Constitutional
    power under the Full Faith & Credit Clause of Article IV, Section 1
    of the U.S. Constitution, to provide that no State shall be required
    to accord full faith and credit to a marriage license issued by
    another State if it relates to a relationship between persons of the
    same sex.

-   Second, DOMA defines the terms \`marriage\' and \`spouse,\' for
    purposes of federal law as terms exclusively applying to
    relationships between persons of the opposite sex.

-   DOMA passed the House in July 1996 by a vote of 342-67, passed the
    Senate 85-14, and was signed into law by President Clinton in
    September 1996.

-   This year, the Supreme Court ruled in *Lawrence v. Texas* that the
    Texas state sodomy law was unconstitutional because it found a
    "right" for individuals to engage in this kind of homosexual
    activity within the liberty interest of due process clause of the
    U.S. Constitution's 14^th^ Amendment.

-   The Supreme Court's majority opinion in *Lawrence* also insinuated,
    through their adherence to the law and dicta of **[foreign
    nations]{.underline}**, that they might also find homosexual
    marriage to be a fundamental right under the liberty interest of the
    14^th^ Amendment's due process clause.

-   Another case is pending in Massachusetts' state supreme court, in
    which it is anticipated that the court will explicitly affirm a
    right to homosexual marriage.

-   There are many other examples of an activist judiciary out of
    control, such as the 9^th^ Circuit's Pledge of Allegiance case and
    the 11^th^ Circuit's 10 Commandments case--both of which Congress
    condemned with significant bipartisan majorities.

-   Simply put, traditional heterosexual marriage is under assault by an
    overreaching and oligarchic judiciary. Federal DOMA will likely be a
    target as the federal judiciary wages war against traditional
    marriage.

**THE MARRIAGE PROTECTION ACT**

**U.S. REP. JOHN HOSTETTLER**

**CONCLUSION**

-   We cannot be passive in light of an orchestrated legal campaign to
    redefine the institution of marriage through the judicial process.

-   DOMA was a modest effort to combat that agenda. Given the aggressive
    nature of the activist courts, the Marriage Protection Act puts a
    preemptive check on the Supreme Court and inferior federal courts by
    stripping their jurisdiction and preventing them from hearing any
    question on the full faith & credit provision of DOMA.

-   The Marriage Protection Act: (1) defends and protects the
    institution of traditional, heterosexual marriage; (2) protects
    state sovereignty and self-governance; and (3) preserves scarce
    government resources.

-   Congress must consider every Constitutional mechanism available to
    address the growing problem of judicial activism, and do all we can
    to prevent the courts from creating a new "right" by dictating to
    America that homosexual marriage is the supreme law of the land.

-   Urge your Member of Congress to cosponsor Rep. Hostettler's Marriage
    Protection Act.

**THE JUDICIAL SUPREMACY MYTH**

-   The Constitution clearly gives Congress the authority to strip
    jurisdiction from the federal courts. However, some are
    uncomfortable with this approach because, like many of us, opponents
    were likely instructed to believe that the Supreme Court and its
    decisions are the supreme law of the land.

-   Today legal scholars would have you believe that in the 1803 Supreme
    Court case *Marbury v. Madison*, Chief Justice John Marshall forever
    sewed into the fabric of the American Republic that once the Supreme
    Court says a thing, that thing is not just the 'law of the land' but
    is *the supreme law of the land!*

-   This notion of judicial supremacy is not supported by the U.S.
    Constitution or its Framers. Instead, the court imposed this
    authority on itself through its own decisions, most notably in
    *Marbury v. Madison* in 1803. But this concept was not born out in
    practice and did not take root in future Supreme Court
    decision-making, or in popular culture for that matter, until after
    the *Cooper v. Aaron* decision in 1958.

-   Not only is that not what Marshall said in *Marbury*, but it was his
    belief as he related it to an associate, Justice Chase, that
    Congress had an 'appellate jurisdiction' over the federal judiciary.

-   According to Marshall, when the Congress deemed a legal opinion of a
    judge to be 'unsound,' the Congress in exercising its appellate
    jurisdiction over the federal judiciary, would correct the situation
    by a 'reversal' of the 'unsound \... legal opinion.'

**U.S. Supreme Court Chief Justice John Marshall 1804:** Regarding the
impeachment by Congress of members of the federal judiciary, Marshall
wrote: "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
the Judge who has rendered

them unknowing of his fault."

**Thomas Jefferson, 1820:** In addition to refusing to seat Mr. Marbury,
Jefferson clarified his rejection of the doctrine of judicial supremacy
when he wrote: "\[T\]o consider the judges as the ultimate arbiters of
all constitutional questions \[is\] 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\...\[A\]nd their power 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."

**Thomas Jefferson, 1819:** "If this opinion \[of judicial supremacy\]
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."

**Andrew Jackson, 1832:** "Each public officer who takes an oath to
support the Constitution swears that he will support it as he
understands it, and not as it is understood by others\... The opinion of
judges has no more authority over Congress than the opinion of Congress
had over the judges, and on that point the President is independent of
both. The authority of the Supreme Court must not, therefore, be
permitted to control the Congress or the Executive."

**Abraham Lincoln, First Inaugural Address, 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 instant they are made in ordinary
litigation between parties to personal actions, 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."