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Marriage and Congress


Conservatives in Congress are unsure whether to push ahead with a Federal Marriage Amendment, or what form that amendment should take if they do. One alternative approach that is being discussed is that of Rep. John Hostettler. He would strip the federal courts of jurisdiction over challenges to the Defense of Marriage Act. That 1996 both defines marriage as heterosexual for the purposes of federal law and allows states not to recognize other states’ same-sex marriages.

I’m sympathetic to Hostettler’s bill because it would focus narrowly on the dangers of judicial abuse rather than also limit state legislatures’ freedom of action (as the FMA would). But the bill leaves judges so much running room that it’s hard to see what it would accomplish. The Supreme Court could order states to recognize same-sex marriage under any one of several constitutional theories; neither DoMA nor this protection of it would block the court. State courts in all 50 states could impose same-sex marriage, too, and the bill wouldn’t block them. If the idea is to ensure that same-sex marriage comes only to states that choose it democratically, Hostettler’s bill doesn’t do it.


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