Washington The effort to ban same-sex marriage is returning this week to Capitol Hill, as House conservatives seek to prevent federal courts from ruling on the constitutionality of a law that defines marriage as the union of a man and a woman.
After the Senate last week declined to consider a constitutional amendment banning same-sex marriage, House Republicans began pushing a measure they say would bar federal courts, including the Supreme Court, from hearing cases concerning a 1996 law called the Defense of Marriage Act.
"The U.S. Constitution explicitly grants Congress the power to check the federal courts and prevent them from imposing homosexual marriage on every state in the union," said Rep. John Hostettler, R-Ind., chief sponsor of the legislation that would remove the marriage law from jurisdiction of the courts.
Under the law, passed after three gay couples sued in Hawaii for the right to marry, states are exempt from having to recognize same-sex marriages performed in other states. The law also defines marriage as the union of one man and one woman.
But since the Massachusetts Supreme Judicial Court ruled in November that the state's constitution requires Massachusetts to allow same-sex unions, many conservatives have said marriage was under attack from activist judges who undermined the people's will.
"Any state which chooses not to recognize the same-sex marriages of Massachusetts should be able to defend and preserve the institution of marriage without the interference of the federal courts," Hostettler said.
Hostettler's Marriage Protection Act would strip courts of their ability to hear most cases brought under the Defense of Marriage Act. The House Judiciary Committee approved the measure 21-13 on July 14, and a floor vote is expected this week.
Unlike the constitutional amendment debated by the Senate -- which would have required a two-thirds majority in both houses of Congress for passage, followed by ratification by three-fourths of state legislatures -- the Marriage Protection Act only needs a majority to pass the House and Senate.
Congress has the authority to limit the jurisdiction of the federal courts under Articles III and IV of the Constitution, but opponents contend that Hostettler's bill would undermine the balance between the judicial and legislative branches.
"The entire system of checks and balances depends on an independent federal judiciary that ensures that laws passed by Congress are constitutional," said Christopher Anders, legislative council at the American Civil Liberties Union. "This reckless bill would take away the Supreme Court's authority to decide whether a federal law is constitutional."
Rep. Anthony Weiner, D-N.Y., echoed Anders' concerns and said the Marriage Protection Act would "relitigate Marbury vs. Madison," a landmark 1803 ruling that established the Supreme Court as the final authority on whether a law is constitutional.
Rep. John Conyers, D-Mich., said the act would be "unconstitutional and divisive" and charged that Republicans are playing politics because "the president is in danger of losing his job and wants to detract attention from his Iraq failure and to bolster support among right-wing conservatives."
Even if passed by the House, the act faces opposition in the Senate, where some lawmakers say they do not want to interfere in the jurisdiction of the federal courts.