THREE LETTERS SUBMITTED BY THE THE HONORABLE JOHN N. HOSTETTLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA Religious Freedom Coalition 717 Second Street NE Washington, DC 20002 June 18, 2004 The Honorable John Hostettler United States House of Representatives Dear Congressman Hostettler: I commend you for offering the Marriage Protection Act because it protects the traditional family unit which is the basis of any society, and at the same time it protects the right of states under the Tenth Amendment and by long tradition, to decide for themselves matters such as marriage law. The travesty of same sex "marriage" that began in Massachusetts, not by the will of the people but by the decree of a handful of arrogant activist judges, should not be forced on the rest of the states. The people of Massachusetts may in time prevail against their overbearing Supreme Court, but the process of reversal will take time, and with each passing day more homosexual "marriages" are performed. It is only a matter of time until an activist federal judge, or even the Supreme Court, tries to force other states to recognize these "marriages." Every poll shows that legalization of same sex marriage is unwanted by a large majority of American citizens, but even opponents may not fully realize the potential for harm if either civil unions or marriages for homosexuals become the law of the land. There will be an endless barrage of legal assaults against pastors and others who dare to speak out or even to quote verses of Scripture which condemn homosexuality. Children in the public schools will be subjected to "how to" homosexual education and indoctrination, and any teachers who object will likely face lawsuits and loss of employment. For the sake of our country and future generations, I hope the Congress will stand in defense of the American people against activist judges and will exercise their Constitutional right, even obligation, to put restraints on the judiciary. Yours sincerely, William J. Muanau William J. Murray National Headquarters: 906 Lafayette Blvd., Fredericksburg, VA 22401 EAGLE FORUM PHYLLIS SCHLAFLY PRESIDENT February 23, 2004 Leading The Pro-Family Movement Since 1972 EDUCATION CENTER: 7800 BONHOMME AVE., ST. LOUIS, MO 63105, (314) 721-1213, fax:(314) 721-3373 Dear Representative, On behalf of Eagle Forum members nationwide, I urge you to co-sponsor the Marriage Protection Act (H.R. 3313), sponsored by Congressman John Hostettler (R-IN). In 1996, Congress overwhelmingly passed (and President Clinton signed) the Defense of Marriage Act (DOMA), which defines marriage as the union between one man and one woman and also interprets the Full Faith and Credit Clause of the U.S. Constitution to permit each state to define marriage within its jurisdiction. Thirty-seven states responded by passing state DOMAS. Even though DOMA is solid law, many legal scholars are now warning that activist courts will strike it down. The Marriage Protection Act would add a third section to the Defense of Marriage Act removing jurisdiction from all federal courts to hear challenges to that law. Under Article III of the U.S. Constitution, Congress has the power to limit jurisdiction of the federal courts, including the U.S. Supreme Court. This option has been exercised many times; in fact, Senator Tom Daschle (DSD) has used it for his agenda. While the Marriage Protection Act would not stop the state courts from acting, it would stop federal court mischief, especially in appellate circuits. This bill is needed to reign in the federal judiciary. Your support for H.R. 3313 is especially needed now considering the recent Massachusetts Supreme Court ruling that gay marriage, not civil unions, is the only "remedy." Once Massachusetts begins issuing marriage licenses to homosexual couples, those couples will have legal standing to wage significant challenges to the state and federal Defense of Marriage Acts. While a constitutional amendment is ultimately needed, the two-thirds vote in Congress plus three-forths ratification by the states is a long-term battle. Congress should take action this year to protect DOMA. The Marriage Protection only needs simple majorities in Congress and a Presidential signature. There is no silver bullet solution to judicial activists' attempts to redefine marriage, but our first shot should be ensuring that they can't tamper with DOMA. Please co-sponsor and urge immediate passage of the Marriage Protection Act. Faithfully, Phyllis Scheafly. Staff contact: Lori Waters, Executive Director of Eagle Forum. (202) 544-0353 LETTER FROM WITNESS PROFESSOR MICHAEL GERHARDT TO THE HONORABLE TOM FEENEY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA The Honorable Tom Feeney. Dear Representative Feeney: June 28, 2004 I greatly appreciate the opportunity to clarify how separation of powers constrains both the Congress' powers to abolish inferior federal courts and to regulate the jurisdiction of inferior federal courts or the Supreme Court. I have taken the liberty of copying Representative Hostettler and the Constitution Subcommittee's staff, because I think they each might have an interest in my clarification. I trust this letter will help you, and hope you will not hesitate to let me know if you need any further clarification on my testimony and responses at the June 24th hearing. As I recall, your concern at the June 24th hearings of the Constitution Subcommittee had to do with the problem of figuring out why the greater power of the Congress to abolish courts did not include within it the lesser power to regulate federal jurisdiction in any way that the Congress saw fit. Generally, it does. But neither the power to abolish nor the power to limit the jurisdiction of inferior federal courts is absolute. Both powers are subject to constitutional limitations. Depending on how those powers are exercised, different constitutional problems may arise. Academics hotly dispute whether there are any internal constraints on the powers to abolish or withdraw jurisdiction, i.e., whether any of the provisions in Article III restrict these powers. Article III conceivably limits Congress' power to regulate federal jurisdiction in at least two ways (both discussed in Professor Redish's written statement and amply elsewhere in the literature on federal jurisdiction). Justice Story suggested in Martin v. Hunter's Lessee that Article III's provisions constrain the power to regulate federal jurisdiction: He argued that at the very least the text of Article III, by its use of the word "shall," that the entire judicial power of the United States ought to vested, in original or appellate form, in some Article III court. He read the vesting clause of Article III as a mandate. Professor Amar at Yale Law School refines Story' argument. Alternatively, he argues that the text indicates that only three categories of cases those preceded in Article III's text by the word “all” – ought to be vested in at least one Article III court in some form -- original or appellate. 1 Academics tend, however, to be in less disagreement over the external constitutional constraints on the Congress' power to regulate federal jurisdiction, i.e., on the application of constitutional guarantees outside of Article III on this power. As I suggested at the hearings, I do not believe there is anything magical about this power; it is subject to the same limitations as other plenary congressional powers, including the authority to regulate interstate Commerce. One such limitation is separation of powers. As you know, separation of powers is a body of law based on inferences from the design of the Constitution. Separation of powers constrains the power to regulate federal jurisdiction (including abolishing some inferior Article III courts) in at least three ways: First, it constrains the Congress from using this power to usurp the authority of the other branches in any way. Second, it constrains the Congress from using this power in any way that undermines the functioning of Article III courts. Consequently, if Congress used its power to abolish inferior federal courts in an effort to retaliate against or to override their substantive constitutional decisions, that would violate separation of powers. Third, separation of powers constrains the Congress from bypassing the constitutional requirements for achieving certain outcomes. For instance, the Supreme Court has recognized in its Chadha decision and the decision in City of New York v. Clinton that the presentment and bicameral clauses need to be satisfied in order for a bill to become a law. At the June 24th hearings, you inquired, for instance, about the nature of the separation of powers problem if Congress abolished an inferior court that was occupied. Say, Congress abolished a particular judge's seat on the Ninth Circuit. This would completely undermine that particular judge's ability to exercise Article III power and thus to be an Article III judge. He would have no forum in which to exercise his power unless Congress reassigned his jurisdiction, i.e., assigned him -- for some neutral reason to exercise his authority elsewhere within the circuit. (There might still be an equal protection problem with why this judge has been singled out for disparate treatment.) Abolishing a particular judge's seat or perhaps an entire district deviates from the limited paths by which constitutional decisions of Article III courts may be overridden - by constitutional amendment or the Court's overruling itself. Moreover, if the Congress abolished an inferior court that was occupied it would be effectively removing an Article III judge without complying with the constitutional requirements for impeachment and removal of Article III judges. These requirements include impeachment by a majority of the House and a vote to remove by at least two-thirds of the Senate. Moreover, separation of powers constrains the Congress from regulating federal jurisdiction in a way that eviscerates an essential function of the Supreme Court. Imagine, for instance, Congress withdraws all federal jurisdiction with respect to a particular constitutional claim or a set of constitutional claims. If only state courts retained the power to review congressional laws, then it is likely that such laws would be enforced and construed differently throughout the country. The absence of finality and uniformity in the enforcement and interpretation of federal law violates separation of powers because it robs Article III courts, particularly the Supreme Court, of an essential function - ensuring the finality and uniformity in the enforcement and interpretation of federal law in the United States. I read the Supreme Court's decision in Martin v. Hunter's Lessee, among other decisions, as directing such a result. If the Congress could simply avoid compliance with a constitutional directive of an Article III court through its power to regulate jurisdiction, then every law could evade constitutional judicial 2 |