In recent weeks, House Republicans have gotten behind a “two-vote strategy” on same-sex marriage. They want to vote on a bill before voting on a constitutional amendment. “Which bill?” has been the main subject of debate. Some Republicans want to vote on a bill that would block same-sex marriage in the District of Columbia. Others are seeking a vote on Indiana congressman John Hostettler’s bill to remove the federal courts’ jurisdiction over the Defense of Marriage Act. Majority leader Tom DeLay is said to fall in the latter camp. But the Family Research Council, one of the strongest social-conservative organizations, is opposed to DeLay’s apparent strategy.
Other social conservatives are behind the Hostettler bill–notably Concerned Women for America and Phyllis Schlafly’s Eagle Forum. (Concerned Women for America differs from DeLay, however, in one respect: It does not support the bill as a way of building momentum for the Federal Marriage Amendment. It opposes the amendment on the peculiar theory that it would enshrine civil unions in the Constitution.)
Tony Perkins, the president of the Family Research Council, has two objections to the Texan’s two-step. The first sounds like an objection to any two-vote strategy. “We’re not in favor of having two measures moving because we feel like it will give some people a way to take cover,” he tells me. “They can vote for one and say that they’ve done what they can do to protect marriage–and not do what needs to be done, an amendment.”
Second, Perkins says that the Hostettler court-stripping bill would accomplish very little. It would block the federal courts from striking down the Defense of Marriage Act. But it would not block state courts from imposing same-sex marriage, as in Massachusetts. Nor would it block federal courts from imposing same-sex marriage: Any federal court could find that current state marriage laws amount to unconstitutional discrimination without touching the federal Defense of Marriage Act. Nor would the Hostettler bill stop federal or state courts from unbundling the elements of marriage and providing them to same-sex couples one benefit at a time.
Perkins emphasizes that he is in favor of court-stripping as a general proposition, and that he does not question the motives of DeLay or like-minded conservatives: “This is a disagreement about strategy.”
There’s another strategic problem with the Hostettler strategy. Let’s assume that Perkins, DeLay, and Schlafly are right and that the political branches should assert their power to regulate the federal courts’ jurisdiction. (I certainly believe that they are right about this specific point.) The propriety of this kind of court-stripping is nonetheless very controversial. Building the respectability of the idea is a long-term project. It would make sense to start with an issue where the public is very strongly on conservatives’ side: Todd Akin’s bill to strip the lower federal courts of jurisdiction over challenges to the Pledge of Allegiance, for example. In the case of the Hostettler bill, on the other hand, both the controversy over marriage and the controversy over court-stripping would combine to sink the bill. Many conservatives who oppose same-sex marriage but are conventional in their view of the relationship between the courts and the legislature would vote against it. Conservatives whose main concern is to amend the Constitution to prohibit same-sex marriage would not have furthered their goal. Neither would those conservatives whose main concern is reining in the courts.
This objection would not apply to a vote on same-sex marriage in D.C. A bill against that might very well pass, and perhaps build momentum for a constitutional amendment. (Of course, the D.C. vote would bring up the issue of home rule; although that objection probably should carry more weight than the objection to court-stripping, it clearly doesn’t as a matter of practical politics.)
Stuart Roy, a spokesman for DeLay, says that House Republicans have not settled on the strategy. “It’s still very fluid,” he says. “What we don’t want is to throw a constitutional amendment on the floor that fails and takes all the wind out of the sails of the effort to protect marriage. And DeLay believes that there’s a way to build momentum so that we can actually win rather than simply lose and complain about it.”