Hostettler at Eye of Gay-Marriage Storm

December 4, 2005

Andrea Neal column for July 20 and thereafter
670 words

(Note to editors: This is an updated version of this week’s column for newspapers that publish it later in the week).

An Indiana congressman has emerged as the leader of the latest effort to block gay marriage. Instead of changing the Constitution with an amendment, he’s trying to use the Constitution to achieve his goal.

The U.S. House voted 233-194 Thursday to approve the Marriage Protection Act sponsored by Republican John Hostettler, who represents the 8th congressional district in southwest Indiana. The bill now goes to the Senate.

If passed, the measure would strip the federal courts of their ability to hear cases concerning the federal Defense of Marriage Law, which has been on the books since 1996. That law defines marriage as the union of one man and one woman and exempts states from having to recognize relationships that may be legal in other states.

Hostettler’s bill is a less radical alternative than the Federal Marriage Amendment, which was killed July 14 on a procedural vote in the Senate.

It calls into play an obscure provision in the Constitution: Article III, Section 2, which states, "The Supreme Court shall have jurisdiction, both as to law and to fact, with such exceptions, and under such regulations, as the Congress shall make."

The upshot, according to Hostettler press secretary Michael Jahr: "It will protect states’ ability to determine how they are going to define marriage." If Massachusetts wants to legalize same-sex marriages it can, Jahr explains, but no federal court could then order Indiana to recognize those marriages.

That doesn’t mean it’s not controversial. Most of the groups that opposed the constitutional amendment also object to HR 3313.

Fran Quigley, who heads the Indiana Civil Liberties Union, calls it "a power grab by one branch of government."

"Obviously Congress does have a role in determining jurisdiction," Quigley says. "But this is determining jurisdiction in violation of the Equal Protection Clause," which requires states to treat all people equally.

Hostettler believes he stands on firm legal ground. The Constitution gives Congress power to decide what issues federal courts may and may not hear.

"It is obvious to anyone who actually reads the Constitution that we can do this," Hostettler says. "In other words, the question today is: Should Congress exercise its constitutional authority to stop the federal courts from striking down the federal Defense of Marriage Act?"

If the constitutional arguments sound complex, they boil down to a simple question. Should states, judges or the Constitution determine the definition of marriage?

President Bush would like to change the Constitution to ensure that marriage remains the same institution it has always been throughout the nation.

Hostettler’s bill envisions different marriage laws in different states, but no state having to honor a law conflicting with its own.

Quigley sees no legitimate reason to prevent federal courts – and the U.S. Supreme Court – from deciding what’s constitutional. "As a person who’s concerned about civil liberties, the idea of taking away jurisdiction of federal courts is really troubling."

No matter where people stand on the issue, none should accuse Hostettler of misusing the Constitution for political purposes. His proposal is exactly what the Founding Fathers envisioned when they gave the legislative branch the power to regulate federal courts. They wanted to create one more check against all-powerful judges.

"The great object of my fear is the federal judiciary. That body, like gravity, ever acting with noiseless foot and unalarming advance" is "gaining ground step by step and holding what it gains."

Those words may sound like something President Bush would say to justify a constitutional amendment barring gay marriage. In fact, Thomas Jefferson spoke those words in 1821.

Jefferson could not have imagined a congressional debate over same-sex weddings. But he would surely applaud those like Hostettler who don’t just jump on the bandwagon to amend, but first look to the Constitution’s own language for answers.

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