New GOP gay-ban tactics Court powers could be taken away, says majority leader By Jonathan E. Kaplan
Realizing that a constitutional amendment banning gay marriage faces little chance of passing soon, if ever, House Republicans yesterday discussed alternative approaches, including stripping federal courts of jurisdiction over the issue, passing a federal law to define marriage and using the appropriations process to ban gay marriage in Washington.
All the legislative action on gay marriage is currently in the Senate, but the House GOP is rapidly developing its own tactics. Leaders will take their first step next week when they take up Rep. John Hostettler' s (R-Ind.) "jurisdiction stripping" bill. This would bar federal courts from hearing lawsuits related to gay sex and marriage.
While the House will not debate a constitutional amendment before the summer recess, it might take it up when Congress resumes in September.
Majority Leader Tom DeLay (R-Texas) told reporters yesterday that he plans to use "jurisdiction stripping" measures to achieve other social policy goals as well.
For example, he will push legislation to stop federal courts from hearing lawsuits related to the words "under God" in the Pledge of Allegiance.
The U.S. Constitution establishes only the Supreme Court but leaves it to Congress to "ordain and establish" the lower federal courts. Arguably, therefore, Congress has the right determine the federal courts' jurisdiction.
"That [Supreme Court] building is the Taj Mahal. . Everybody should stay away from it," he said about Congress's past unwillingness to challenge Supreme Court decisions.
DeLay said the time is "not quite ripe" to apply the GOP's new legislative tactics to the issue of abortion.
The majority leader's decision to consider voting on a constitutional amendment to ban gay marriage is a change of tack. When authorities in San Francisco began issuing marriage licences to same-sex couples in the spring of this year, DeLay appeared to oppose amending the Constitution.
But yesterday he told reporters that the Senate action had moved the politics of the issue ahead. "The fact that the Senate brought it up for a vote made you all write about it," he said, adding, "The debate has been joined.
"The protection-of-marriage amendment is not an offensive action; it is a defensive action taken in direct response to the brazen usurpation of legislative authority by four judges in Boston."
A senior Republican lawmaker, who spoke on the condition of anonymity, said the amendment had been brought up by conservative activists in hopes of stirring grassroots support close to the election. "Gay marriage is a big base issue. Activists see the issue as one of timing, too. They're [politically astute]. But the Senate jumped the gun, which puts us in an awkward situation," the lawmaker said.
Rep. John Shadegg (R-Ariz.) echoed DeLay: "Congress is not choosing to do this. It is important to educate the American people."
Lawmakers kicked aides out of their weekly conference meeting yesterday to discuss alternative approaches to blocking gay marriage. Members of the Republican Study Group also discussed the issue.
Rep. Jo Ann Davis (R-Va.) has proposed a Definition of Marriage Act (DOMA) for Washington, D.C. DOMA has defined marriage in 38 states but not in the District of Columbia, which the Constitution gives Congress the authority to regulate.
Davis told The Hill that one idea would be to vote on her proposal as an amendment to the D.C. appropriations bill. "That's a thought; it's something we are contemplating," she said. "It depends on leadership."
Rep. Ernest Istook (R-Okla.) sent a "Dear Colleague" letter yesterday to lawmakers decrying the need for a "Plan B" in case a constitutional amendment fails to pass.
Istook wrote that the goal is "straightforward so that every Member of Congress is clearly on the record; Have immediate impact, so the same-sex marriages happening in Massachusetts do not continue to threaten the institution of marriage; [and] Require passage by only a simple majority in Congress."
Aides said such a law would be unconstitutional, however, because it violates the Constitution's Commerce Clause.
The prospect for passing an amendment remains bleak after yesterday' s 48-50 defeat in the Senate.
Sen. John Cornyn (R-Texas), who chairs the Senate Judiciary's Constitutional subcommittee, told reporters: "I think [the House] can learn from our experience in debating this issue," adding that had the Senate just voted on a measure defining marriage between a man and a woman would have given proponents at least 10 more votes. The cloture motion, however, still would have failed.