updated 7/21/2004 8:04:40 PM ET 2004-07-22T00:04:40

Continuing Republicans’ election-year focus on gay marriage, the House is considering legislation to keep federal courts from ordering states to recognize same-sex unions sanctioned outside their borders.

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Supporters said Wednesday it is needed to protect state bans on gay marriage from federal judges who might rule that a gay marriage that took place in Massachusetts, the only state where it is legal, must be recognized by other states.

“This bill is really a reaffirmation of states’ rights,” said Rep. David Dreier, R-Calif., chairman of the House Rules Committee.

The Marriage Protection Act would strip the Supreme Court and other federal courts of their jurisdiction to rule on challenges to state bans on gay marriages under a provision of a 1996 federal law that defines marriage as between a man and a woman.

Republican leaders expect the measure to pass when it comes to a vote Thursday, a week after the Senate dealt gay marriage opponents a setback by failing to advance a constitutional amendment to ban same-sex unions.

Dems say GOP ‘working base to a frenzy’
Democratic opponents said the GOP is pushing ahead with an unconstitutional bill to appeal to socially conservative voters who are a key Republican constituency.

“That’s what this is really all about, working their base to a frenzy for the election,” Rep. Luis Gutierrez, D-Ill., said.

Adding to Democrats’ sense that the legislation of the House is motivated by politics is that no federal court has yet to rule on the 1996 law, the Defense of Marriage Act. “The legislation is premature,” Rep. Jerrold Nadler, D-N.Y., told the Rules Committee.

Nadler said he believes the legislation is unconstitutional. However, legal scholars said the constitutional question of stripping jurisdiction from federal courts is unresolved.

“My sense is that Congress has explicit authority in the Constitution...but it is a largely unexercised power,” said Douglas Kmiec, a Pepperdine University constitutional law professor and former legal adviser to Republican presidents.

For one, a memory of segregation
While Republicans defended states’ rights, Democrats said the phrase recalled Southern opposition to ending segregation, which was propelled by a series of federal court rulings.

“Today, it’s gay marriage. Tomorrow, it could be something else. It’s very dangerous for any Congress to move down this road,” Rep. John Lewis, D-Ga., a civil rights leader, said.

Some Republicans also cited their desire to avoid setting a precedent. Former Rep. Bob Barr of Georgia said in a letter to lawmakers that future unconstitutional legislation could be rendered immune from federal court review by including similar language.

Rep. Mark Kirk, R-Ill., said he worries that a Congress under Democratic control would limit judicial review of legislation desired by trial lawyers.

However, Rep. John Hostettler, R-Ind., the author of the bill, said it is more important to prevent federal courts from establishing a national precedent for marriage. “Simply put, if federal courts don’t have jurisdiction over marriage issues, they can’t hear them. And if they can’t hear cases regarding marriage policy, they can’t redefine this sacred institution,” Hostettler said when he introduced the legislation in May.

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