The Marriage Protection Act Bill Passed by the House of Representatives
Trying to Make Sense of the Nonsensical

By VIKRAM DAVID AMAR

Friday, Aug. 06, 2004
People of reason and good faith can disagree about the policy wisdom and/or constitutional imperative of recognizing same-sex marriages. But the way the issue is being dealt with these days on Capitol Hill is, well, pretty embarrassing.

Case in point: The passage - almost entirely along party lines -- by the House of Representatives on July 22 of a bill known as the "Marriage Protection Act (MPA)." The MPA is intended to bar federal courts from forcing a state to recognize same-sex marriages entered into in another state. But as drafted, it does nothing of the sort. Indeed, if enacted it might even lead to more interstate recognition of same-sex marriages.

The Legal Background of the Marriage Protection Act

The MPA, which was described last week in a column for this site by Joanna Grossman, purports to reinforce the so-called "Defense of Marriage Act" (DOMA) - which was passed by Congress and signed into law during the Clinton Administration. So, to understand the MPA one must first understand DOMA - and that, in turn, requires a bit of background.

Article IV of the U.S. Constitution ordinarily requires all states to give full faith and credit - that is, full respect -- to "Acts, records and judicial proceedings" of other states. To implement this clause, which is called the Full Faith and Credit Clause, Congress has passed a statute - the Full Faith and Credit Act, 28 U.S.C. §1738. (These section numbers will be useful to the discussion that follows.)

When Congress passed DOMA and codified it in a separate section of the code -- 28 U.S.C. §1738C -- Congress was trying to make clear the limits of the Full Faith and Credit Act. The terms of DOMA provide that a state's general "full faith and credit" obligation under the Full Faith and Credit Act does not extend to same-sex relationships treated as marriages by another state. DOMA thus purports to leave the recognition of same-sex marriage entirely to each state.

The Marriage Protection Act Itself: Its Specific Wording

The Marriage Protection Act purports to divest all federal courts - both lower federal courts and the Supreme Court - of the power to resolve any questions that may arise under DOMA. It was apparently motivated by distrust and fear of these courts - in particular, a fear that they will find DOMA to be unconstitutional.

Here is exactly what the MPA says:

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 [that is, DOMA] or this section [that is, the MPA itself].

The bottom line: Federal courts can't even look at "any question pertaining to" DOMA or the MPA.

The MPA Raises Numerous Constitutional Problems

As Joanna Grossman discussed in her earlier column, there are a number of strong constitutional challenges that have been lodged against the MPA. Here, let me add just a few more, that move me quite a bit:

First, let's assume for a moment that, as MPA supporters claim, Congress has broad powers -- when it desires to affect the outcome of particular kinds of cases -- to strip the lower federal courts or the Supreme Court of jurisdiction to hear cases. Even if this is true, Congress' power to strip both the lower federal courts and the Supreme Court at the same time is far less clear.

After all, Article III of the Constitution provides that the jurisdiction of some federal court "shall extend to all cases . . . arising under" federal law. And certainly, a case about either of these federal statutes - DOMA or the MPA - would arise under federal law. The MPA suggests that no federal court could hear any such case. But Article III - which trumps -- suggests exactly the opposite.

Because Article III says federal jurisdiction "shall" extend "all" to such cases, it strongly implies - and many scholars have concluded -- that there must be some federal court open to hear any case arising under a federal law, which would include MPA and DOMA cases. That means that, even if Congress has broad powers to strip the jurisdiction of lower federal courts or the Supreme Court, it cannot do both at once.

A second constitutional wrinkle arises from the last line of the MPA, which purports to prevent federal courts from considering even the constitutionality of the MPA itself (that is what the reference to "this section" is all about.") The idea that a federal court would be stripped of authority to determine whether it can validly be stripped of authority is quite novel - ordinarily courts always have the power to decide whether they have the power to hear a particular case. This is known as the inherent "jurisdiction to determine jurisdiction."

Why the MPA, If Enacted in its Current Form, Would Likely be Ineffective

But let us assume, as some constitutional scholars might conclude, that the MPA is fully constitutional. My larger point is that the bill is utterly silly in its current form. In fact, the bill as currently written won't accomplish what its drafters want - to prevent federal courts from being in the business of imposing same-sex marriage recognition on unwilling states.

The reason for this is simple: People who want to use a federal court in one state to enforce a same-sex marriage arrangement entered into in another state won't be raising "any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C" - the phrase used by the MPA. Instead, proponents of out-of-state marriage recognition will be relying on section 1738 - the generic provision that requires states to accord full faith and credit to other states - and on the Constitution itself.

For example, take a same-sex couple who married in Massachusetts and then moved to, say, California. The couple would file an action in federal court in California asking the federal court to order California state officials to honor the marriage, because the federal Constitution and 1738 require it.

It is the opponents of gay marriage recognition (in my hypothetical, the California state officials) who need to invoke section 1738C - DOMA -- as a defense to an action based on section 1738 and the Constitution. But, ironically enough, the MPA will prevent a federal court from entertaining this defense based on DOMA, because that defense would raise a "question pertaining to the interpretation of" the DOMA. But the MPA doesn't prevent the federal court from hearing the rest of the case - that part urged by the same-sex plaintiffs. So under the text of the bill persons seeking to enforce out-of-state same-sex marriages will have access to federal courts after all.

Notice, in this regard, that the bill ousts federal court jurisdiction over certain "questions"; it does not oust jurisdiction over "cases" in which one party might raise certain questions. An alternative way to draft the MPA might have been along the following lines: "Federal courts lack jurisdiction to hear any case in which a relevant and non-frivolous question concerning the meaning or validity of the DOMA is raised."

Better still -- if Congress really wanted to prevent a federal court from requiring a state to recognize an out-of-state same-sex union -- the MPA should have been written more like the DOMA itself, perhaps something like: "No federal court shall have jurisdiction to entertain a claim that federal full faith and credit principles require the recognition of a same-sex marriage." The way the MPA is written right now, focusing as it does on "questions" of the interpretation and validity of DOMA, the bill leaves the federal courthouse doors wide open.

Is the MPA's Aim Coherent In Any Event?

But even if the House had been more artful in its drafting, the question arises, are opponents of gay marriage recognition well served by cutting federal courts out of the loop? In other words, let us suppose that Congress had effectively prevented all federal courts from dealing with full faith and credit cases in the context of same-sex marriage. Would that have made sense?

Not if you think the federal constitutional amendment urged by President Bush and supported by the most of the same House Republicans who passed the MPA makes any sense. That proposed federal constitutional amendment is premised on the notion that we need national uniformity on the question of same-sex marriage - that on a question this large we don't want to leave things to each of the separate states. And yet if (a more well-drafted version) of the MPA became law, then enforcement of the DOMA would be left entirely to each of the 50 state supreme courts. Some of these state supreme courts might uphold and implement the DOMA; others might invalidate the DOMA as violating the federal constitution. And the MPA would prevent the U.S. Supreme Court from stepping in to provide a national answer to the question whether the DOMA is constitutionally permissible. The disuniformity contemplated by the MPA is 180 degrees counter to the arguments in favor of national uniformity made by the same persons in the House concerning the proposed constitutional amendment.

Are Federal Courts to be Feared Here?

And why are same-sex marriage opponents scared of federal courts - as opposed to state courts - anyway? The majority of the U.S. Supreme Court in Lawrence v. Texas made pretty clear that this Supreme Court - which controls all federal courts and all courts on matters of federal law - is not very anxious to mandate the recognition of same-sex marriage under the Fourteenth Amendment. And there is no evidence to suggest that this Supreme Court would likely be more activist with respect to the full faith and credit idea.

Indeed, the only courts so far to recognize the idea of same-sex marriage have been state Supreme Courts - in Hawaii a few years back and in Massachusetts last year. And yet these state court judges are the persons in whom the MPA's proponents want to place the final word as to the meaning and the constitutional validity of the DOMA? What gives?

Regardless of one's views on the larger legal and social questions surrounding same-sex marriage, the carelessness and intellectual inconsistency exhibited in Congress should be troubling to everybody, even in a contentious Presidential election year.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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