LIMITING FEDERAL COURT JURISDICTION TO PROTECT MARRIAGE FOR THE STATES

THURSDAY, JUNE 24, 2004

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON THE CONSTITUTION,

COMMITTEE ON THE JUDICIARY,
Washington, DC.

The Subcommittee met, pursuant to call, at 10 a.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot (Chair of the Subcommittee) presiding.

Mr. CHABOT. The Committee will come to order. Good morning. This is the Subcommittee on the Constitution. This is the fourth hearing that we've had relative to the issue at hand.

When the Supreme Court in Lawrence v. Texas struck down a State law criminalizing same-sex sodomy last year, Justice Scalia in his dissent pointed out that, quote, "State laws against bigamy, same-sex marriage, adult incest, prostitution, adultery, fornication, bestiality and obscenity" are all "called into question" by the Court's decision. That is a very disturbing prospect, and it should concern legislators nationwide.

The threat posed to traditional marriage by Federal judges whose decisions can have an impact across State boundaries has renewed concern over the abuse of power by Federal judges. This concern has roots as old and venerable as our Nation's history.

Thomas Jefferson lamented that, quote, "the germ of dissolution of our Federal Government is in the constitution of the Federal judiciary; ... advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped . . ." Jefferson wrote of Federal judges, quote, "Their power is the more dangerous as they are in office for life and not responsible . . . to the elective control," unquote. And Abraham Lincoln said in his first inaugural address in 1861, quote, "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," unquote.

A remedy to abuses by Federal judges has long been understood to lie, among other places, in Congress' authority to limit Federal court jurisdiction, and that is the subject of our hearing today.

Regarding the Federal courts below the Supreme Court, article III of the Constitution provides that, quote, "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

(1)

and establish." Regarding the Supreme Court, article III provides that, quote, “in 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 other cases the Supreme Court shall have appellate Jurisdiction with such Exceptions and under such Regulations as the Congress shall make,” unquote.

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 its very limited original jurisdiction; that is, cases involving ambassadors or in which one of the States is a party.

In Federalist Paper No. 80, Alexander Hamilton made clear the broad nature of Congress' authority to amend Federal court jurisdiction to remedy perceived abuse. He wrote, describing the Constitution, that, quote, "it ought to be recollected that the national legislature," us, the Congress, “will have ample authority to make such exceptions, and to prescribe such regulations as will be calculated to obviate or remove the inconveniences" posed by the decisions of the Federal judiciary.

That understanding prevails today. As a leading treatise on Federal court jurisdiction has pointed out, quote, "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" of the Constitution. And 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.

Limiting Federal court jurisdiction to avoid abuses is not a partisan issue. 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. Democratic Senator Robert Byrd introduced an amendment to a Senate bill during the 96th Congress which was adopted by a Senate controlled by Democrats with large bipartisan support. That amendment 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 buildings. In this Congress, several similar bills limiting Federal court jurisdiction are pending, including H.R. 3313, the Marriage Protection Act, which was introduced by Mr. Hostettler from Indiana, who serves on this Subcommittee. H.R. 3313 would remove from Federal court jurisdiction certain cases involving the Federal Defense of Marriage Act.

Federal legislation that precludes Federal court jurisdiction over certain constitutional claims to remedy perceived abuses and to preserve for the States and their courts the authority to determine constitutional issues rests comfortably within our constitutional system. The Supreme Court has clearly rejected claims that State courts are less competent to decide Federal constitutional issues than Federal courts. Even Justice William Brennan has written, in an opinion joined by Justices Marshall, Blackmun and Stevens,

that, quote, "virtually all matters that might be heard in article III courts could be also be left by Congress to State courts," unquote. Far from violating the "separation of powers," legislation that reserves to State courts 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 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 its powers to prevent overreaching by the other branches.

We look forward to hearing from all of the witnesses here this morning, and I'll now yield to the Ranking Member of the Committee, the gentleman from New York Mr. Nadler for his opening statement.

[The prepared statement of Mr. Chabot follows:]

PREPARED STATEMENT OF THE HONORABLE STEVE CHABOT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO, AND CHAIRMAN, SUBCOMMITTEE ON THE CONSTITUTION

When the Supreme Court in Lawrence v. Texas struck down a state law criminalizing same-sex sodomy last year, Justice Scalia, in his dissent, pointed out thatquote—“[s]tate laws against bigamy, same-sex marriage, adult incest, prostitution adultery, fornication, bestiality, and obscenity" are all "called into question" by the Court's decision. That is a very disturbing prospect, and it should concern legislators nationwide.

The threat posed to traditional marriage by federal judges whose decisions can have an impact across state boundaries has renewed concern over the abuse of power by federal judges. This concern has roots as old and venerable as our Nation's history.

Thomas Jefferson lamented that quote "the germ of dissolution of our federal government is in the constitution of the federal judiciary; ... advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped . . . Jefferson wrote of federal judges-quote-"their power [is] the more dangerous as they are in office for life and not responsible... to the elective control."

And Abraham Lincoln said in his first inaugural address in 1861-quote “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."

A remedy to abuses by federal judges has long been understood to lie, among other places, in Congress' authority to limit federal court jurisdiction, and that is the subject of our hearing today.

Regarding the federal courts below the Supreme Court, Article III of the Constitution provides that "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." Regarding the Supreme Court, Article III 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. with such Exceptions, and under such Regulations as the Congress shall make.” 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 its very limited original jurisdiction.

In Federalist Paper No. 80, Alexander Hamilton made clear the broad nature of Congress' authority to amend federal court jurisdiction to remedy perceived abuse. He wrote, describing the Constitution, that "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 the inconveniences" posed by decisions of the federal judiciary.

That understanding prevails today. As a leading treatise on federal court jurisdiction 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" of the Constitution. And as eminent federal jurisdiction scholar Herbert Wechsler (pronounced Wex-ler) 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

Limiting federal court jurisdiction to avoid abuses is not a partisan issue. 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. Democratic Senator Robert Byrd introduced an amendment to a Senate bill during the 96th Congress which was adopted by a Senate controlled by Democrats with large bipartisan support. That amendment 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 buildings. In this Congress, several similar bills limiting federal court jurisdiction are pending, including H.R. 3313, the Marriage Protection Act, which was introduced by Mr. Hostettler from Indiana, who serves on this Subcommittee. H.R. 3313 would remove from federal court jurisdiction certain cases involving the federal Defense of Marriage Act.

Federal legislation that precludes federal court jurisdiction over certain constitutional claims to remedy perceived abuses, and to preserve for the states and their courts the authority to determine constitutional issues, rests comfortably within our constitutional system. The Supreme Court has clearly rejected claims that state courts are less competent to decide federal constitutional issues than federal courts. Even Justice William Brennan has written, in an opinion joined by Justices Marshall, Blackmun, and Stevens, that quote "virtually all matters that might be heard in Article III courts could also be left by Congress to state courts."

Far from violating the "separation of powers," legislation that reserves to state courts 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 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 its powers to prevent overreaching by the other branches.

I look forward to hearing from all our witnesses today.

Mr. NADLER. Thank you, Mr. Chairman.

Mr. Chairman, today we begin our fourth in a series of five hearings on the topic of same-sex marriage. We have already devoted more time in this Committee to this topic than to the means by which we might preserve our democratic form of Government if terrorists wipe out our Government. One would think that the possibility that somewhere a lesbian or gay couple might live out their years peacefully and happily were a greater threat to the United States than is al Qaeda.

Today, however, the topic is a very serious one. The hysteria over the marriage question has brought some to the point of suggesting that Congress should 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 public policy. Past attempts to restrict court jurisdiction have followed many civil rights decisions, including the reapportionment cases. Fortunately, cooler heads in Congress prevailed at the time, and the decisions that gave rise to these outlandish proposals are now no longer controversial for the most part. Unless I am greatly mistaken, no one in this room would question the constitutional protection of one person, one vote. I trust that decades from now these debates will find their way into the textbooks next to the segregationist backlash, the Court-pack

ing plan of the 1930's and other attacks on our system of Government.

The disabilities that lesbian and gay families suffer are widely known. Today I will be introducing the Equal Access to Social Security Act, for example, that would allow same-sex couples to receive the same Social Security benefits as every other couple, that would allow the children of same-sex couples to receive survivors' benefits and disability benefits, benefits for which these people pay taxes just the same as everyone else. While this would address only a small portion of the more than 1,000 benefits denied to same-sex families, it would correct one terrible injustice.

In today's hearing, Mr. Chairman, it is our very system of Government and the constitutional system of checks and balances that are under attack. If the Congress by statute were to prevent the Federal courts from applying the Constitution to any subject matter it chooses, then the protections of an independent judiciary, the protections to our individual liberties afforded by the institution of the independent judiciary and by the existence of the Bill of Rights would be no more than a puff of smoke. The Bill of Rights, in other words, could be undone by a simple refusal by Congress to allow the courts jurisdiction to enforce any particular one of the Bill of Rights.

Imagine if we passed a bill stripping the courts of jurisdiction to hear alleged violations of the freedom of the press or freedom of religion. It would be unpopular minorities, of course, whether religious minorities, political minorities, lesbians or gays, or whoever is unpopular at the moment, who will lose their rights. After all, it is the unpopular whose rights must be protected from the majority by a Bill of Rights. The majority rarely needs its rights protected.

As Hamilton said in Federalist No. 78, 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 should pass no bills of attainder, no ex post facto laws and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all reservations of particular rights or privileges would amount to nothing.

Gay marriage does not threaten the future of this country. The evisceration of our Constitution and the Bill of Rights does threaten the future of the liberties of our citizens. We are playing with fire at this hearing, and that fire could destroy our liberties. I hope we don't use that fire.

Thank you, Mr. Chairman.

Mr. CHABOT. Thank you.

It's my understanding that the gentleman from Indiana would like to make an opening statement. He's the principal sponsor of 3313.

Mr. HOSTETTLER. I thank the Chairman.

Mr. Chairman, as a nonlawyer, I count it a high privilege to serve as a Member of this Subcommittee. However, as a student of the United States Constitution, I would not be truthful if I said