29–006 

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 

2

1Section 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, § 1 (emphasis added).

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: 

‘‘§ 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. § 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. § 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. 

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 samesex 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. 

3

2Thirty-seven states enacted Defense of Marriage Act laws following enactment of the Federal 

DOMA. See Ala. Code § 30–1–19; Alaska Stat. § 25.05.013; Ariz. Rev. Stat. Ann. § 25–101; Ark. 

Code Ann. § 9–11–107; Cal. Fam. Code § 308.5; Colo. Rev. Stat. Ann. § 14–2–104; Del. Code Ann. 

Tit. 13, § 101; Fla. Stat. Ann. § 741.212; Ga. Code Ann. § 19–3–3.1; Haw. Rev. Stat. § 572–1; 

Idaho Code § 32–209; 750 Ill. Comp. Stat. Ann. 5/212; Ind. Code § 31–11–1–1; Iowa Code § 595.2; 

Kan. Stat. Ann. § 23–101; Ky. Rev. Stat. Ann. § 402.040; La. Civ. Code Ann. Art. 89; Md. Code, 

Family Law, § 2–201; Me. Rev. Stat. Ann. Tit. 19–a, § 701; Mich. Comp. Laws Ann. § 551.1, .271; 

Minn. Stat. Ann. § 517.01; Miss. Code Ann. § 93–1–1; Mo. Rev. Stat. § 451.022; Mont. Code Ann. 

§ 40–1–401; Neb. Const. Art. I, § 29; Nev. Const. Art. I, § 21; N.C. Gen. Stat. § 51–1.2; N.D. Cent. 

Code § 14–03–01; Ohio Rev. Code § 3101.01; Okla. Stat. Ann. Tit. 43, § 3.1; 23 Pa. Cons. Stat. 

Ann. § 1704; S.C. Code Ann. § 20–1–15; S.D. Codified Laws § 25–1–1; Tenn. Code Ann. § 36–3–

113; Tex. Fam. Code Ann. § 6.204; Va. Code Ann. § 20–45.2; Wash. Rev. Code Ann. § 26.04.020; 

W. Va. Code Ann. § 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. § 45a–727a; Md.Family § 2–201; N.H.St. § 457:1–2; Utah Code Ann. § 30–1–2; Wi.St. 

§ 765.01; Wy.St. § 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 § 8. 3See Ala. Code § 30–1–19; Alaska Stat. § 25.05.013; Ariz. R.S. § 25–112; Ark. Code Ann. § 9– 11–107; Cal. Fam. Code § 308.5; Colo. Rev. Stat. Ann. § 14–2–104; Ct.St. § 45a–727a; Del. Code 

Ann. Tit. 13, § 101; Fla. Stat. Ann. § 741.212; Ga. Code Ann. § 19–3–3.1; Hawaii St. § 572–3; 

Idaho Code § 32–209; Ind. Code § 31–11–1–1; Iowa Code § 595.20; Kan. Stat. Ann. § 23–101; Ky. 

Rev. Stat. Ann. § 402.040; La. Civ. Code Ann. Art. 3520; Md. Code, Family Law, § 2–201; Me. 

Rev. Stat. Ann. Tit. 19–a, § 701; Mich. Comp. Laws Ann. § 551.1, .271; Miss. Code Ann. § 93– 1–1; Mo. Rev. Stat. § 451.022; Mont. Code Ann. § 40–1–401; Neb. Const. Art. I, § 29; Nev. Const. 

Art. I, § 21; 2004 New Hampshire Laws Ch. 100 (S.B. 427); N.C. Gen. Stat. § 51–1.2; N.D. St. 

§ 14–03–08; Ohio Rev. Code § 3101.01; Okla. Stat. Ann. Tit. 43, § 3.1; 23 Pa. Cons. Stat. Ann. 

§ 1704; S.C. Code Ann. § 20–1–15; Tenn. Code Ann. § 36–3–113; Tex. Fam. Code Ann. § 6.204; 

Utah Code Ann. § 30–1–4; Va. Code Ann. § 20–45.2; Wash. Rev. Code Ann. § 26.04.020; W. Va. 

Code Ann. § 48–2–603. 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)). 

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. 

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. § 1738C, the section of DOMA that H.R. 3313 protects from Federal interference. 

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 

4

8 Id. at 2481. 9 Ibid. 

10 Id. at 2490, 2498 (Scalia, J., dissenting) (emphasis added). 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)).

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

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

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 

5

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). 13 XV The Writings of Thomas Jefferson (Albert Bergh, ed. 1903) at 213 (letter from Thomas 

Jefferson to Judge Spencer Roane (September 6, 1819)). 14 Abraham Lincoln’s First Inaugural Address (March 4, 1861) in 4 The Collected Works of 

Abraham Lincoln 268 (Roy P. Basler, ed. 1953). 15 Herbert Wechsler, ‘‘The Courts and the Constitution,’’ 65 Colum. L. Rev. 1001, 1005 (1965). 16See Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868). 

error. Responding to the argument that Federal judges are the 

final interpreters of the Constitution, Jefferson wrote: 

You seem . . . to consider the [federal] judges as the ultimate 

arbiters of all constitutional questions, a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men 

and not more so. They have with others the same passions for 

party, for power, and the privilege of their corps . . . [T]heir 

power [is] the more dangerous as they are in office for life and 

not responsible, as the other functionaries are, to the elective 

control. The constitution has erected no such single tribunal, 

knowing that, to whatever hands confided, with the corruptions of time and party its members would become despots.12

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

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

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

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 

6

17This 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, § 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.’’). 18The 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. 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. § 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.’’). 

Court, and in such inferior Courts as the Congress may from time 

to time ordain and establish.’’ 17

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

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

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:

7

21Federalist 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). 22Federalist No. 81 (Hamilton) at 490 (Clinton Rossiter ed., 1961). 23See Clinton Rossiter, 1787: The Grand Convention, chapter 10 (1966). 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). 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. 

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

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

Roger Sherman, whom eminent historian Clinton Rossiter considered one of the most influential members of the Constitutional 

Convention,23 also wrote that: 

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

FROM THE FIRST JUDICIARY ACT OF 1789 TO THE PRESENT, CONGRESS’S USE OF ITS AUTHORITY TO LIMIT FEDERAL COURT JU- RISDICTION 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

The first Congress made clear that Federal court jurisdiction 

over constitutional claims was not unlimited. As the Congressional 

Research Service has written:

8

27Kenneth Thomas, Congressional Research Service, CRS Report for Congress, ‘‘Limiting 

Court Jurisdiction Over Federal Constitutional Issues: ‘Court-Stripping’ ’’ (updated May 19, 

2004) at 7. 28 1 Stat. 85. 29See Martin v. Hunter’s Lessee, 14 U.S. 304, 352 (1816). 30See Gordon v. Caldcleugh, 7 U.S. 268 (1806). 31See 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). 32William 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). 34 Encyclopedia of American History 145 (R. Morris 6th ed. 1982). 35See 1 Annals of Congress 812–13 (J. Gales ed. 1789). 

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

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

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 

9

36See Gazette of the United States (September 19, 1789) at 3, col. 2. 37See 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.’’). 38See 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. 39 2 Annals of Congress 1719 (1790). 40See 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’’). 42See 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.’’). 

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

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

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–

10

43See Pub. L. No. 107–206, § 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. 45See Congressional Quarterly, Congressional rollcall 1979, at 10–S (‘‘R 25–12; D 26–28 ’’). 46William F. Buckley, ‘‘Alternatives on Marriage,’’ The Washington Times (March 2, 2004). 47 3 U.S. (3 Dall.) 321 (1796).

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

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. 

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

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 

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 constituVerDate jul 14 2003 23:16 Jul 19, 2004 Jkt 029006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6601 E:\HR\OC\HR614.XXX HR614
11

48 Id. at 328. 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). 53 Id. at 9, n.a. (citing statement of Justice Case). 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.’’).

tional point of an appellate jurisdiction, is simply, whether 

Congress has established any rule for regulating its exercise? 48

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: 

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

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 

12

56 Id. at 244–46 (emphasis added). 57 46 U.S. (5 How.) 103 (1847). 58 Id. at 119. 59 29 U.S. 441 (1850).

state and Federal courts and dismissed the case for lack of jurisdiction: 

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

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

In Sheldon v. Sill,59 the Supreme Court stated: 

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 

13

60 Id. at 448–49. 61 73 U.S. (6 Wall.) 247 (1868). 62 Id. at 251–52. 63 80 U.S. 128 (1871). 64 Id. at 147. 65 Id.

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

In Mayor v. Cooper,61 the Supreme Court held that: 

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

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

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 

14

66 Id. at 146. 67 Id. at 145 (emphasis added). 68 105 U.S. 381 (1881). 69The Francis Wright, 105 U.S. 381, 385–86 (1881). 70 195 U.S. 165 (1904). 71 Id. at 167 (quotations and citations omitted). 72 260 U.S. 226 (1922). 73 Id. at 234.

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. 

In The Francis Wright,68 the Supreme Court stated: 

[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

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

In Kline v. Burke Construction Co.,72 the Supreme Court states 

that: 

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

15

74 303 U.S. 323 (1938). 75 319 U.S. 182 (1943). 76 Id. at 187–88 (quotations and citations omitted) (emphasis added).

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.’’

In Lockerty v. Phillips,75 the Supreme Court similarly held, in 

upholding a statute limiting lower courts’ jurisdiction over challenges to price controls, that 

[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, 

§ 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

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 

16

77Martin 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). 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)). 79Mansell v. Mansell, 490 U.S. 581, 587 (1989). 80Moore v. Sims, 442 U.S. 415, 435 (1979). 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. 82See 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.’’). 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:

not limited in its dictates to matters of constitutional law, much 

less of constitutional right.’’ 77

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

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. 

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

STATE COURTS ARE NOT SECOND-CLASS COURTS, AND THEY ARE

EQUALLY CAPABLE OF DECIDING FEDERAL CONSTITUTIONAL QUES- TIONS

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

17

[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 policymaking 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.’’). 84See 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. 87Martin 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). 88 Id. at 148. 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. 

Continued

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. 

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

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

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

18

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.’’). 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. 91See 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.’’). 

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

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

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 

19

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

20

ROLLCALL NO. 1—Continued

Ayes Nays Present 

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. Sa ́nchez ...................................................................................................... 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. Sa ́nchez ...................................................................................................... X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 11 19 1 Pass 

21

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. Sa ́nchez ...................................................................................................... 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. 

22

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. § 1738C and over 

the newly created 28 U.S.C. § 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. 

23

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. § 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. § 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 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.

* * * * * * *

§ 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. 

24

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:]

25


I3313A.eps
26


I3313B.eps
27

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. 

28

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. 

29

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? 

30

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 

31

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:]

32


A3313A.eps
33

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 diVerDate jul 14 2003 23:16 Jul 19, 2004 Jkt 029006 PO 00000 Frm 00033 Fmt 6659 Sfmt 6601 E:\HR\OC\HR614.XXX HR614
34

vorce 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 

35

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. 

36

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 JudiciVerDate jul 14 2003 23:16 Jul 19, 2004 Jkt 029006 PO 00000 Frm 00036 Fmt 6659 Sfmt 6601 E:\HR\OC\HR614.XXX HR614
37

ary 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? 

38

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, 

39

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 socalled 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. 

40

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 

41

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 

42

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. 

43

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. 

44

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 

45

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:]

46

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, 


A3313B.eps
47

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 

48

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. 

49

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.

50

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 

51

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 ShaysMeehan 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. 

52

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 

53

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. 

54

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 

55

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:]

56


CaseB1.eps
57


CaseB2x.eps
58


CaseB3.eps
59


CaseB4.eps
60


CaseB5.eps
61


CaseB6.eps
62


CaseB7.eps
63


CaseB8.eps
64


CaseB9.eps
65


CaseB10.eps
66


CaseB11.eps
67


CaseB12.eps
68


CaseB13.eps
69


CaseB14.eps
70


CaseB15.eps
71


CaseB16.eps
72


CaseB17.eps
73


CaseB18.eps
74


CaseB19.eps
75

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. 

76

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 

77

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. 

78

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:]

79


CaseA1.eps
80


CaseA2.eps
81


CaseA3.eps
82


CaseA4.eps
83


CaseA5.eps
84


CaseA6.eps
85


CaseA7.eps
86


CaseA8.eps
87


CaseA9.eps
88


CaseA10.eps
89


CaseA11.eps
90


CaseA12.eps
91


CaseA13.eps
92


CaseA14.eps
93


CaseA15.eps
94


CaseA16.eps
95


CaseA17.eps
96


CaseA18.eps
97


CaseA19.eps
98


CaseA20.eps
99


CaseA21.eps
100


CaseA22.eps
101


CaseA23.eps
102


CaseA24.eps
103

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 

104

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 milVerDate jul 14 2003 23:16 Jul 19, 2004 Jkt 029006 PO 00000 Frm 00104 Fmt 6659 Sfmt 6601 E:\HR\OC\HR614.XXX HR614
105

lennia 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. 

106

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 91⁄2

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 ConstituVerDate jul 14 2003 23:16 Jul 19, 2004 Jkt 029006 PO 00000 Frm 00106 Fmt 6659 Sfmt 6601 E:\HR\OC\HR614.XXX HR614
107

tion 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. 

108

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, 

109

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. 

110

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:]

111

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 deVerDate jul 14 2003 23:16 Jul 19, 2004 Jkt 029006 PO 00000 Frm 00111 Fmt 6659 Sfmt 6601 E:\HR\OC\HR614.XXX HR614

A3313C.eps
112

cide 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 

113

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 ConVerDate jul 14 2003 23:16 Jul 19, 2004 Jkt 029006 PO 00000 Frm 00113 Fmt 6659 Sfmt 6601 E:\HR\OC\HR614.XXX HR614
114

gress, 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 

115

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 conVerDate jul 14 2003 23:16 Jul 19, 2004 Jkt 029006 PO 00000 Frm 00115 Fmt 6659 Sfmt 6601 E:\HR\OC\HR614.XXX HR614
116

sider 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 

117

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 

118

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 amendVerDate jul 14 2003 23:16 Jul 19, 2004 Jkt 029006 PO 00000 Frm 00118 Fmt 6659 Sfmt 6601 E:\HR\OC\HR614.XXX HR614
119

ment 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:]

120

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. 


A3313D.eps
121

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 

122

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 

123

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:]

124


CRS1.eps
125


CRS2B.eps
126


CRS3.eps
127


CRS4.eps
128


CRS5.eps
129


CRS6.eps
130


CRS7.eps
131


CRS8.eps
132


CRS9B.eps
133

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. 

134

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. 

135

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 

136

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 sysVerDate jul 14 2003 23:16 Jul 19, 2004 Jkt 029006 PO 00000 Frm 00136 Fmt 6659 Sfmt 6601 E:\HR\OC\HR614.XXX HR614
137

tem 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. 

138

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 

139

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? 

140

[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.] 

141

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. 

142

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? 

143

[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.] 

(145)

DISSENTING VIEWS


Views1.eps
146


Views2.eps
147


Views3.eps
148


Views4.eps
149


Views5.eps
150


Views6.eps
151


Views7.eps
152


Views8.eps
153


Views9.eps
154


Views10.eps
155


Views11.eps
156


Views12.eps
157


Views13.eps
158


Views14.eps
159


Views15.eps
160


Views16.eps
161


Views17.eps
162


Views18.eps
163


Views19.eps
164


Views20.eps
165


Views21.eps
166

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. SA ́ NCHEZ.

Æ