Posted on 10/30/2004 12:40:23 PM PDT by Ed Current
TESTIMONY OF PHYLLIS SCHLAFLY Phyllis Schlafly Bio, 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 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. 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.(see footnote 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.''(see footnote 2)
DOMA also protects each state's right to adopt the same traditional definition of marriage.(see footnote 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.''(see footnote 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)(see footnote 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 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!(see footnote 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(see footnote 7)) or ''evolving paradigm'' (as in Goodridge v. Department of Public Health(see footnote 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),(see footnote 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,(see footnote 10) made similar assertions. For example, in Ex parte Bollman (1807),(see footnote 11) Marshall said that ''courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.''
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),(see footnote 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)(see footnote 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,(see footnote 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).(see footnote 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].''(see footnote 16)
In The Francis Wright (1882),(see footnote 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 Norris-LaGuardia Act(see footnote 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).(see footnote 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),(see footnote 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)(see footnote 21) that employers had to pay retroactive wages for coal miners' underground travel to and from their work station, Congress passed the Portal-to-Portal Act of 1947(see footnote 22) prohibiting any court from enforcing such liability.
Even one of the leading judicial activists, Justice William Brennan, acknowledged Congress's constitutional power to limit the jurisdiction of the federal courts. In 1982 he wrote for the Court in Northern Pipeline Construction Co. v. Marathon Pipe Line Co.:(see footnote 23) ''Of course, virtually all matters that might be heard in Art. III courts could also be left by Congress to state courts . . . [and] the principle of separation of powers is not threatened by leaving the adjudication of federal disputes to such judges.''
In 1999 the Supreme Court upheld Congress's power to restrict the jurisdiction of the federal courts to interfere in certain immigration disputes (Reno v. American-Arab Anti-Discrimination Committee).(see footnote 24) In 2003 the Supreme Court upheld a 1996 law signed by President Clinton that gave exclusive authority to the U.S. Attorney General to deport certain illegal aliens and specified that federal courts have no jurisdiction to review such removal orders (Hatami v. Ridge).(see footnote 25)
Another statute that prohibits judicial review is the Medicare law,(see footnote 26) on which nearly everyone over age 65 relies for health care. Congress mandated that ''there shall be no administrative or judicial review'' of administrative decisions about many aspects of the Medicare payment system. When someone sued in federal court anyway, the court dismissed the lawsuit based on this prohibition of judicial review (American Society of Dermatology v. Shalala, 1996).(see footnote 27)
Article I, Section 8 of the Constitution states: ''The Congress shall have power . . . to constitute tribunals inferior to the Supreme Court.'' Article III, Section 1 states: ''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.'' These two sections mean that all federal courts except the Supreme Court were created by Congress, which defined their powers and prescribed what kind of cases they can hear. Whatever Congress created it can uncreate, abolish, limit or regulate.
The Supreme Court explained this in Lockerty v. Phillips (1943)20: ''All federal courts, other than the Supreme Court, derive their jurisdiction wholly from the exercise of the authority to 'ordain and establish' inferior courts, conferred on Congress by Article III, 1, of the Constitution. Article III left Congress free to establish inferior federal courts or not as it thought appropriate. It could have declined to create any such courts, leaving suitors to the remedies afforded by state courts, with such appellate review by this Court as Congress might prescribe. . . . The Congressional power to ordain and establish inferior courts includes the power 'of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.' ''
Article III, Section 2 states: ''The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.'' This section means that Congress can make ''exceptions'' to the types of cases that the Supreme Court can decide. This is the most important way that Congress can and should bring an end to the reign of judges legislating from the bench.
The American people expect Congress to use its constitutional power so clearly available, and the voters are currently alienated because of Congress's failure to put down the attacks on marriage. We believe it is Congress's constitutional duty to protect the American people from judicial supremacists who might commit the outrage of overruling the federal and all state laws about marriage. Do we have self-government by our elected representatives, or don't we?
The argument will be made that we should accept any activist judge's ruling as ''the law of the land'' and that it is impertinent for Congress to preempt the courts. However, House Judiciary Committee Chairman Sensenbrenner made it clear in a speech to the U.S. Judicial Conference on March 16 of this year that he stands up for Congress's ''constitutionally authorized'' and ''appropriate'' powers over the judiciary. Mr. Sensenbrenner was not referring to the subject of this hearing, but it seems to me that the principle is the same. Congress must not shrink from subjecting activist judges to criticism or from Congress's use of its ''constitutionally authorized'' powers.
Prepared Statement of Professor Charles E. Rice, Professor Emeritus of Law, Notre Dame Law School
Limiting Federal Court Jurisdiction To Protect Marriage For The States
Testimony Of Martin H. Redish, Professor Of Law And Public Policy, Northwestern Law School
Phyllis Schaflay is well-intentioned, but is this the right way to do it? Sometimes a cure is worse than a sickness.
Federal judges are given vast powers so they can be free of political pressure. But they aren't given the right to abuse their power (like so many 'Rat-appointed judges do). The remedy for judges like him is impeachment for abuse of power.
I thought congress could only remove FEDERAL court jurisdiction. One of your other articles you posted said that yes they could ONLY IF state courts remained able to rule on the subject.
Phyllis Schaflay is well-intentioned, but is this the right way to do it?
Conviction requires a supermajority in the Senate. Impeachement, alone, may get some judges attention…hard to say.
Removing the issue from the fed courts is easier than removing the judge from the issue i.e., no supermajority in the Senate requirement.
Limiting Federal Court Jurisdiction To Protect Marriage For The States
"the use of article III, section 2 by Congress is not something with which they are unfamiliar. In the last Congress it was used 12 times, and I submit that if it was used 12 times in the last Congress, it can be used 1 time in this current Congress."
My problem is in starting with the jurisdiction limiting plan is that it leaves state courts able to rule on the subject of federal benefits, or so it appears to me. If the state courts cannot decide that the federal constitution invalidates the DOMA for their state then great. But I'm not clear on that. It looks to me like this might just give the Massachusetts and Vermont courts more power, allowing them to bestow FEDERAL benefits and rewards on the homosexuals in their state. That would only encourage other state courts to rule in favor of gay marriage so that federal laws are not unequally applied.
Please let me know if you want on or off my Pro-Life Ping List.
If we can't rely on the words to have consistent meanings, we are no longer under the rule of law, but under the rule of man whose opinions change with the seasons.
You are just too logical and clear thinking to join this insane debate. LOL!
LOL! Bump.
It is pointed out above that certain medicaid decisions were not subject to appeal. There should be no reason that congress should have to leave federal benefit decisions to the states either.
That is one of the reasons I have not favoured the Marrriage Amendment - the constitution should not be a dictionary, we already have several.
That bears repeating, Apogee. That is exactly why I don't favor it either. If we have to have an amendment to solve the problem, the courts are going to keep Congress jumping through hoops on every other issue they might become pro-active on by RE-DEFINING other words that already have very specific and un-ambiguous meanings.
Head 'em off at the pass and require that they use dictionaries. If they don't possess even those minimal academic skills, how are they even going to balance their checkbook.
Even if Congress pulls their jurisdiction on the subject matter, the stupid state courts will try to pull the same thing. (Oops! Too late. Massachooosettes already did. That's what's causing all the trouble.) Dictionaries should be distributed to all courts as required reading. Maybe if they put porn pictures on every page they'll get read. ;>
I think you already know my solution but I'll repeat it: we need a constitutional amendment that removes such matters as contraception, abortion, and homosexuality from the jurisdiction of federal courts. These are state issues.
But elsewhere it is said that removing jurisdiction from the federal courts required that the state courts be left able to rule on the matter. If it is only Constitutional if SOME court can still rule, then what's the point? We still need a federal amendment if we want to ensure that no court mandates federal rewards/benefits be given to homosexuals. I think we need the amendment first before we remove jurisdiction or the state courts will rule that their citizens are entitled to federal benefits. If that's not the case then great, please explain.
from here:
It could have declined to create any such courts, leaving suitors to the remedies afforded by state courts, with such appellate review by this Court as Congress might prescribe...
Sounds like there might yet be some oversight.
Marriage is a state issue. State judges are generally more accountable to the people of the states. If the judges can't read a dictionary, then states can pass amendments to their constitutions. Longer process, maybe, but it looks as though many states are right on the edge of this.
If certain differently preferenced persons would bother to write wills and such, a lot of the problems they gripe about would not exist - but that is a rabbit trail, anyhow.
May I point out, though, that the federal gov't told Utah how it was going to be on the issue of polygamy.
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