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The Proposed Marriage Protection Act:
Why It May Be Unconstitutional

Tuesday, Jul. 27, 2004

Last week, by a vote of 233 to 194, the House passed the Marriage Protection Act (MPA) of 2004. The Act is a rare attempt at "jurisdiction stripping."

Typically, federal courts have the power to hear any case raising "federal questions." (They have other jurisdiction over other categories of cases as well.) But the MPA would strip these courts - including the Supreme Court - of part of that power.

Specifically, if the MPA were to become law, the federal courts would be divested of the powers to hear two kinds of "federal question" cases: Cases relating to the MPA itself, and certain cases relating to the Defense of Marriage Act (DOMA).

(DOMA attempts to prevent the states from being forced to recognized out-of-state same-sex marriages. The cases the MPA tries to preempt relate to the Constitution's Full Faith and Credit Clause, which requires the states to respect each others' public acts, records, and judgments.)

The MPA is not predicted to make it through the Senate. Still, it is worth considering, for it raises a number of interesting and as-yet-unresolved constitutional questions. Ironically, the persistence of these very questions underlines the need for the federal courts to weigh in - rather than being silenced, as the MPA would have it.

Why the MPA Was Proposed: Fears That DOMA May Be Unconstitutional

The MPA was proposed due to fears that DOMA may be struck down as unconstitutional. So far, no federal court has ruled on this question either way. That's because Massachusetts only began to issue same-sex marriage licenses in May of this year.

Before that, no one had standing - that is, the legal right to be a plaintiff in court -- to test the law's constitutionality. But now, plaintiffs do have standing. Indeed, the first lawsuit challenging DOMA was filed last week in federal court in Florida. In the suit, two Florida women who married in Massachusetts are asking that both the federal government and the state of Florida be forced to give effect to their union - and strike the relevant part of DOMA down.

Meanwhile, even some anti-same-sex-marriage Republicans have conceded that DOMA may well be unconstitutional. When arguing in favor of the Federal Marriage Amendment (FMA) earlier this month, Senate Republicans suggested DOMA might well be struck down. (An earlier column for this site by DOMA sponsor Bob Barr highlighted the ironies of this debate.)

Why might DOMA be struck down? There are two basic arguments - but only one concerns us here.

First, DOMA defines marriage for purposes of federal law as a union between a man and a woman. That could mean, for instance, that federal benefits need not be given to a same-sex spouse of a Massachusetts government employee.

This part of DOMA may be an Equal Protection or Due Process violation - based on two key Supreme Court precedents. The Court held in Lawrence v. Texas that a state may not criminalize same-sex sodomy. And it held in Romer v. Evans that a law borne solely of animosity toward a particular group (there, homosexuals) will not survive even the lowest level of constitutional scrutiny. But this part of DOMA, while severely disabling to a same-sex couple losing out on multiple federal marriage benefits, is not at issue here.

Second, and relevant for our purposes, is that DOMA says that no state need give recognition to a same-sex marriage from a sister state. Specifically, it says no state must give effect to any "public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage".

This second part of DOMA may violate the Full Faith and Credit Clause contained in Article IV of the U.S. Constitution. And the question of whether it does is the very question the MPA tries to prevent the federal courts from resolving.

The Full Faith and Credit Clause Argument: Does DOMA Go Too Far?

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." On its face, that would seem to compel states to recognize each others' marriages - if marriages qualify as public acts.

Granted, some states have carved out public policy exceptions - refusing to recognize other states' incestuous marriages, for instance - that are seen as consistent with Full Faith and Credit. Thus, some commentators maintain that the "public policy exception" itself allows states to refuse recognition to same-sex marriage--at least in the many states that have adopted a statute or amended their own constitution to declare such unions impermissible--and thus moots the need for DOMA in the first place. But others disagree whether such an exception is consistent with the Clause at all.

Some legal commentators dispute that marriages come within the Clause at all - since it has historically been applied primarily to judicial decisions or decrees. (Decrees of divorce, for example, compel interstate recognition, as I explained in a prior column, because they are "judgments" and thus clearly within the ambit of the Full Faith and Credit Clause.)

Game over? Not exactly. The Clause also has another part: It says that "[T]he Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

Pursuant to the first part of this Clause, Congress passed the Full Faith and Credit Act - which addresses the question of how state acts, records, and judicial proceedings -- "shall be proved."

But what about the second part of this Clause - allowing Congress to pass laws "prescrib[ing]" the "Effect" of such acts? Does that allow laws like DOMA - or not?

Legal Experts Are Split on Whether This Part of DOMA Is Constitutional

This question has divided law professors. Some believe that DOMA is unconstitutional because under the Full Faith and Credit Clause, Congress has only the power to dictate what the "Effect" of acts like marriage might be - not whether such acts have any effect at all.

Others believe, however, that the power to define "Effects" also inherently includes the power to render state acts entirely ineffective outside the forum state's borders. That seems, however, to go beyond the purpose of the Full Faith and Credit Clause.

The Clause exists because the Republic could not function if states did not recognize each others' laws, and the judgments enforcing them. It is about state comity and cooperation, and mutual respect. Thus, to interpret the Clause to allow Congress to entirely undermine that comity by targeting certain states' acts and rendering them ineffective out-of-state, seems somewhat perverse.

After all, through the doctrine of federal pre-emption, Congress can pre-empt state laws already - but only in areas that are properly federal. If Congress is not empowered to dictate standards for marriage in the first instance, then it shouldn't be able to make an "end run" around the limits of that power by simply rendering them ineffective in other states via laws like DOMA.

Meanwhile, even if Congress can - hypothetically - render certain states' acts, such as marriage, ineffective in other states, there may be a limit to that power. And that limit may come in part from other Constitutional Clauses - such as those guaranteeing Equal Protection and Due Process.

Again, the Supreme Court's Lawrence and Romer precedents suggest that discrimination against homosexuals or infringements on the fundamental right to marry may well be unconstitutional - and discrimination against same-sex marriage may be included.

The Constitutionality of the Marriage Protection Act Itself

All these questions are ripe for federal courts to consider. But the MPA would deny them the opportunity to do so. Would the MPA's jurisdiction-stripping itself be unconstitutional?

Certainly, it would seem to be unprecedented: No prior law has ever completely removed an issue from the Supreme Court's reach. Indeed, according to the non-partisan Congressional Research Service, there is no precedent "for a law that would deny the inferior federal courts original jurisdiction or the Supreme Court of appellate jurisdiction to review the constitutionality of a law of Congress."

But just because a law is unprecedented, doesn't mean it's unconstitutional. It is well-settled that under the Constitution, Congress can control lower federal court jurisdiction. And the Constitution says that Congress can make "exceptions" to even the Supreme Court's appellate jurisdiction, under which DOMA cases would fall. (The Court's "original" jurisdiction over cases such as interstate territorial disputes, however, is set in stone.)

Again, though, there is an interpretive problem: What does the power to make "exceptions" mean, exactly? And, is that power limited by constitutional separation of powers principles?

After all, jurisdiction-stripping takes power from the Courts, and leaves it with Congress (or here, the States). Suppose issue-based jurisdiction-stripping like the MPA's is permissible. Then whenever the controlling party in Congress does not like the way courts were handling an issue, it can pass a new law stripping courts of the right to review that law. That just doesn't seem right - at an extreme, it would render the courts toothless, and give Congress fangs.

Can Congress indeed strip the Court of jurisdiction in such a way that it undermines the general constitutional allocation of power among the branches of government? And if it cannot, then is the MPA that kind of prohibited jurisdiction-stripping?

Finally, what if the MPA itself is discriminatory against gays and lesbians - stripping the Court of the ability to consider an issue that so deeply affects their fates? Could it be unconstitutional under Equal Protection and Due Process precedents - again, including Lawrence and Romer?

Romer, in particular, seems on point: It struck down an amendment to Colorado's constitution that would have precluded any governmental action designed to prohibit or alleviate discrimination against gays and lesbians. Like that amendment, the MPA seems to directly and intentionally target and impede the effectiveness of pro-gay-and-lesbian actions by a state.

For all these reasons, the MPA is likely unconstitutional. If it fails, as predicted, in the Senate, we will rightly move on to the very questions it did not want courts to consider: Important questions as to what it means for states to have to respect other states' judgments, and even as to what it means for all Americans to enjoy what the Constitution guarantees to them: The equal protection of the law.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University. Her other columns on discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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