honors, with highest honors, in political science from the University of Pennsylvania and his J.D. Magna cum laude from Harvard law school. He has been described in a review of his book, The Federal Courts in the Political Order, as quote, "without a doubt the foremost scholar on issues of Federal court jurisdiction in this generation," unquote.

Professor Redish is the author or coauthor of 70 articles and 13 books, including Federal Jurisdiction: Tensions in the Allocation of Federal Power. He was recently included on a list of the 100 most cited legal scholars of all time.

And we welcome you here this morning, Professor.

And our fourth and final witness is William "Bill" Dannemeyer. Mr. Dannemeyer was first elected to the U.S. House of Representatives in 1978 where he served 7 terms, 14 years, serving on the Budget, Judiciary and Energy and Commerce Committees. He also was elected Chairman of the Republican Study Committee. Mr. Dannemeyer is a graduate of Valparaiso University and the Hastings College of Law. He has served as a special agent in the Army Counterintelligence Corps during the Korean War. He has also been a lawyer in private practice, a deputy district attorney, and judge pro tem and a California State assemblyman. In January 1995, Mr. Dannemeyer helped organize Americans for Voluntary School Prayer.

We welcome all our witnesses here today. And it's the practice of the Committee to swear in all witnesses appearing before it, so if you would please stand and raise your right hand.

[Witnesses sworn.]

Mr. CHABOT. Okay. We thank all the witnesses for being here, and as a number of you have testified here before, as you know, we have a 5-minute rule, and there is a lighting system, so the green light will be on for 4 minutes. The yellow light will be on when you have 1 minute to wrap up. When the red light comes on, we'd appreciate it if you would stop close to that time. We will give you a little leeway, but if you could stay within the 5 minutes, and then we have to stay within those same 5 minutes ourselves, so we expect nothing less of the folks up here.

So we will begin with you, Mrs. Schlafly. You are recognized for 5 minutes.

TESTIMONY OF PHYLLIS SCHLAFLY, FOUNDER AND

PRESIDENT, EAGLE FORUM

Mrs. SCHLAFLY. Thank you, Mr. Chairman and Members of the Committee. The assault on the Defense of Marriage Act has already begun. A lawsuit claiming that the Federal DOMA violates the U.S. Constitution was filed last month in Federal district court in Miami. A similar case claiming that a State DOMA violates the U.S. Constitution is pending in Federal district court in Nebraska, where a Clinton-appointed Federal judge ruled that the case can proceed to trial. The very idea that unelected, unaccountable judges could nullify both other branches of Government and the will of the American people is an offense against our right of self-government and must not be tolerated.

DOMA was adopted 8 years ago by an overwhelming majority of both Houses of Congress and signed by President Clinton. DOMA

provides that whenever the word "marriage" or "spouse" is used in Federal law, marriage means only a legal union between one man and one woman as husband and wife, and spouse refers only to a person of the opposite sex who is a husband or a wife.

DOMA also protects each State's right to adopt the same traditional definition of marriage, and so at least 39 States have passed State DOMAS which refuse recognition to same-sex marriages performed elsewhere.

DOMA is a splendid, well-written law that fully comports with our great Constitution. So what's the problem? You said at the last hearing on May 13, Mr. Chairman, that it is increasingly clear that activist judges will probably declare Federal and State DOMAS unconstitutional. When you polled the witnesses at last month's hearing, all agreed that DOMA would not be given its intended effect by the Federal courts.

President Bush says repeatedly in his speeches around the country, "We will not stand for judges who undermine democracy by legislating from the bench and try to remake the culture of America by court order." He's right. We won't stand for such judicial arrogance.

Congress must back up this rhetoric with action. The American people expect Congress to use every constitutional weapon at its disposal to protect marriage from attack. Congress cannot stand by and let activist judges cause havoc in our system of marriage law. The General Accounting Office has compiled a list of over 1,000 Federal rights and responsibilities that are contingent on DOMA's definition of marriage. This GAO report states that the marital relationship is "integral" to Social Security and "pervasive" to our system of taxation.

We know that Congress has the unquestioned power to prevent an activist judge from doing what your previous witnesses have predicted. In 2002, Congress passed Senator Daschle's law taking away jurisdiction from the Federal courts to hear lawsuits about brush-clearing in South Dakota. Surely the definition of marriage is as important as brush-clearing in South Dakota.

The long list of Federal statutes in which Congress successfully restricted the jurisdiction of the Federal courts includes the NorrisLaGuardia Act of 1932, the Emergency Price Control Act of 1942, the Portal-to-Portal Pay Act of 1947, the 1965 Medicare Act, the Voting Rights Act of 1965, and the 1996 immigration amendments. Isn't the protection of marriage just as important as any of those issues on which Congress effectively withdrew jurisdiction from the Federal courts? I think the American people think so.

I urge Congress to protect us from the judicial outrage that your previous witnesses have predicted by passing legislation providing that no court of the United States shall have jurisdiction to hear or determine any question pertaining to the interpretation or validity of the Defense of Marriage Act or any State law that limits the definition or recognition of marriage to the union of one man and one woman. It is urgent that this law be passed now. This is Congress' proper way to dismiss the pending lawsuits challenging marriage, exactly like the Daschle law that terminated pending lawsuits about brush-clearing.

The Founding Fathers gave Congress the power to curb the judicial supremacists by deciding what cases they can or cannot hear. We don't trust the courts to respect the wishes of the Congress or of the American people on the matter of marriage. Instead of basing their rulings on the U.S. Constitution, activist judges are more likely to use unconstitutional criteria such as "emerging awareness," used in Lawrence v. Texas, or "evolving paradigm," used in Goodrich v. Department of Public Health.

My written testimony recites the long historical record which conclusively proves that Congress has the power to regulate and limit court jurisdiction, that Congress has used this power repeatedly, and that the courts have consistently accepted Congress' exercise of this power. This record is impressive, authoritative and unquestioned.

And thank you, Mr. Chairman.

Mr. CHABOT. Thank you very much.

[The prepared statement of Mrs. Schlafly follows:]

PREPARED STATEMENT OF PHYLLIS SCHLAFLY

The assault on the Defense of Marriage Act (DOMA) has already begun. A lawsuit claiming that the federal DOMA violates the U.S. Constitution was filed last month in federal district court in Miami, Florida. A similar case claiming that a state DOMA violates the U.S. Constitution is pending in federal district court in Nebraska, where a Clinton-appointed federal judge ruled on November 12, 2003 that the case has legal sufficiency to proceed to trial.

The very idea that unelected, unaccountable judges could nullify both other branches of government and the will of the American people is an offense against our right of self-government that must not be tolerated.

The federal Defense of Marriage Act (DOMA) was adopted eight years ago by an overwhelming majority of both Houses of Congress and signed by President Clinton.1 DOMA provides that whenever the word "marriage" or "spouse" is used in federal law, "marriage means only a legal union between one man and one woman as husband and wife," and "spouse refers only to a person of the opposite sex who is a husband or a wife." "2

DOMA also protects each state's right to adopt the same traditional definition of marriage.3 In response to the shelter offered by the federal DOMA, at least 39 states passed state_DOMAs, which refuse recognition to same-sex marriages performed elsewhere. Four state DOMAS have been put in state constitutions; proposals to do likewise are on the ballot in several other states this year.

DOMA is a splendid, well-written law that fully comports with our great U.S. Constitution. So, what's the problem? You said at the last hearing on May 13, Mr. Chairman, that it is "increasingly clear" that activist judges will probably declare federal and state DOMAS unconstitutional. When you polled the witnesses at last month's hearing, all agreed that DOMA would not be given its intended effect by the federal courts.

President Bush says repeatedly in his speeches around the country: "We will not stand for judges who undermine democracy by legislating from the bench and try to remake the culture of America by court order."4 He's right-we won't stand for such judicial arrogance.

Congress must back up this rhetoric with action! The American people expect Congress to use every constitutional weapon at its disposal to protect marriage from attack.

Congress cannot stand by and let one activist judge cause havoc in our system of marriage law. The General Accounting Office has compiled a 58-page list of 1,049 (since revised to 1,138)5 federal rights and responsibilities that are contingent on DOMA's definition of marriage. The GAO report states that the man-woman marital relationship is "integral" to the Social Security system and "pervasive” to our system

1 Public Law 104-199 (Sep. 21, 1996)

21 U.S.C. Sec 7

328 U.S.C. Sec 1738C

4 Dallas, March 8, 2004

5 GAO-04-353R (Feb. 24, 2004), revising and updating GAO/OGC-97-16 (Jan. 31, 1997)

of taxation. The widespread social and familial consequences of DOMA also impact on adoption, child custody, veterans benefits, and the tax-free inheritance of a spouse's estate.

We know that Congress has the unquestioned power to prevent an activist judge from doing what all your previous_witnesses have predicted. For example, in 2002, Congress passed a law at Senator Tom Daschle's urging to prohibit all federal courts from hearing lawsuits challenging brush clearing in the Black Hills of South Dakota. Surely the definition of marriage is as important as brush fires in South Dakota! 6

The long list of federal statutes in which Congress successfully restricted the jurisdiction of the federal courts (restrictions upheld by the federal courts) includes the Norris-LaGuardia Act of 1932, the Emergency Price Control Act of 1942, the Portal-to-Portal Pay Act of 1947, the 1965 Medicare Act, the Voting Rights Act of 1965, and the 1996 Immigration Amendments. The Voting Rights Act of 1965 is a dramatic manifestation of what Congress can constitutionally do when it wants to limit court jurisdiction. This law denied jurisdiction to southern federal district courts, requiring the southern states to bring their cases in the District Court for the District of Columbia.

Isn't the protection of marriage just as important as any of the issues on which Congress effectively withdrew jurisdiction from the federal courts? The American people think so.

I urge Congress to protect us from the judicial outrage that your previous witnesses have predicted by passing legislation providing that no court of the United States shall have jurisdiction to hear or determine any question pertaining to the interpretation or validity of the Defense of Marriage Act or any state law that limits the definition or recognition of marriage to the union of one man and one woman. It is urgent that this legislation be passed now. This is Congress's proper way to dismiss the pending lawsuits challenging marriage exactly as the Daschle law terminated pending lawsuits about brush clearing.

The Founding Fathers in their wisdom put into the United States Constitution the power for Congress to curb the power of the judicial supremacists by deciding what cases they can or cannot hear. The argument will be made that such legislation means we don't trust the federal courts or the Supreme Court, and that's exactly right-we don't trust the courts to respect the wishes of Congress or of the American people on the matter of marriage. Instead of basing their rulings on the U.S. Constitution, activist judges are more likely to use unconstitutional criteria such as “emerging awareness” (as in Lawrence v. Texas 7) or “evolving paradigm” (as in Goodridge v. Department of Public Health 8).

My written testimony recites the long historical record which conclusively proves that Congress has the power to regulate and limit court jurisdiction, that Congress has used this power repeatedly, and that the courts have consistently accepted Congress's exercise of this power. The record is impressive, authoritative, and unquestioned.

The record supports Congress's power to limit court jurisdiction

In Turner v. Bank of North America (1799),9 Justice Chase commented: "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."

Even Chief Justice John Marshall, who defined the power of judicial review in Marbury v. Madison,1o made similar assertions. For example, in Ex parte Bollman (1807), Marshall said that "courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction."

6 The Daschle law about brush clearing, Public Law 107-206, Sec. 706(j), states: "Any action authorized by this section shall not be subject to judicial review by any court of the United States." The law authorized the Interior Department to clear timber in the Black Hills of South Dakota in order to fight and prevent forest fires. Environmental groups had filed several lawsuits to stop timber clearing. At least one court had issued an order and other suits were pending. The Daschle law terminated all these suits so that timber clearing could continue without judicial interference.

7 Lawrence v. Texas, 539 U.S. 558 (2003)

8 Goodridge v. Department of Public Health, 440 Mass. 309 (2003)

9 Turner v. President, Directors and Company, of the Bank of North America, 4 U.S. 8 (1799) 10 Marbury v. Madison, 5 U.S. 137 (1803)

11 Ex parte Bollman, 8 U.S. 75 (1807)

Early decisions of the Supreme Court were sprinkled with the assumption that the power of Congress to create inferior federal courts necessarily implied, as stated in U.S. v. Hudson & Goodwin (1812), 12 "the power to limit jurisdiction of those Courts to particular objects." The Court stated, "All other Courts [except the Supreme Court] created by the general Government possess no jurisdiction but what is given them by the power that creates them."

The Supreme Court held unanimously in Sheldon v. Sill (1850) 13 that because the Constitution did not create inferior federal courts but rather authorized Congress to create them, Congress was also empowered to define their jurisdiction and to withhold jurisdiction of any of the enumerated cases and controversies. This case has been cited and reaffirmed numerous times. It was applied in the Voting Rights Act of 1965,14 in which Congress required covered states that wished to be relieved of coverage to bring their actions in the District Court for the District of Columbia. The Supreme Court broadly upheld Congress's constitutional power to define the limitations of the Supreme Court "with such Exceptions, and under such Regulations as the Congress shall make" in Ex parte McCardle (1869).15 Congress had enacted a provision repealing the act that authorized the appeal McCardle had taken. Although the Court had already heard argument on the merits, it dismissed the case for want of jurisdiction: "We 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."

McCardle grew out of the stresses of Reconstruction, but the principle there applied has been affirmed and applied in later cases. For example, in 1948 Justice Frankfurter commented: "Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice [already before the court].” 16

In The Francis Wright (1882),17 the Court said: "While 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.... 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."

Numerous restrictions on the exercise of appellate jurisdiction have been upheld. For example, Congress for a hundred years did not allow a right of appeal to the Supreme Court in criminal cases except upon a certification of divided circuit courts. In the 1930s, liberals in Congress thought the federal courts were too pro-business to fairly handle cases involving labor strikes. In 1932 Congress passed the NorrisLaGuardia Act 18 removing jurisdiction in this field from the federal courts, and the Supreme Court had no difficulty in upholding it in Lauf v. E. G. Shinner & Co. (1938).19 The Supreme Court declared, "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."

Liberals followed the same procedure when they passed the Hiram Johnson Acts in order to remove jurisdiction from the federal courts over public utility rates and state tax rates. These laws worked well and no one has suggested they be repealed. Another celebrated example was the Emergency Price Control Act of 1942, in which Congress removed from federal courts the jurisdiction to consider the validity of any price-control regulation. In the test case upholding this law in Lockerty v. Phillips (1943),20 the Supreme Court held that Congress has the power of "withholding jurisdiction from them [the federal courts] in the exact degrees and character which to Congress may seem proper for the public good."

After the Supreme Court ruled in Tennessee Coal v. Muscoda (1944)21 that employers had to pay retroactive wages for coal miners' underground travel to and

12 United States v. Hudson and Goodwin, 11 U.S. 32 (1812)

13 Sheldon v. Sill, 49 U.S. 441 (1850)

14 42 U.S.C. Sec. 1973c

15 Ex parte McCardle, 74 U.S. 506 (1869)

16 National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949)

17 The Francis Wright, 105 U.S. 381 (1881)

18 29 U.S.C. Sec. 101-115

19 Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938)

20 Lockerty v. Phillips, 319 U.S. 182 (1943)

21 Tennessee Coal, fron & Railroad Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944)