ACLU Calls Discriminatory House Court Stripping Bill Unconstitutional, Measure Would Deny Gay and Lesbian Couples Their "Day in Court"

July 21, 2004 12:00 am

Media Contact
125 Broad Street
18th Floor
New York, NY 10004
United States

ACLU Calls Discriminatory House Court Stripping Bill Unconstitutional, Measure Would Deny Gay and Lesbian Couples Their “Day in Court”


WASHINGTON – One week after the Senate rejected the discriminatory Federal Marriage Amendment, the American Civil Liberties Union today urged the House of Representatives to reject a controversial court stripping measure. That legislation, scheduled for a vote tomorrow, would forever slam shut federal courthouse doors to gay and lesbian couples challenging an anti-gay federal marriage law.

“House leaders seem to have forgotten their high school civics lessons,” said Christopher E. Anders, an ACLU Legislative Counsel. “The entire system of checks and balances depends on an independent federal judiciary that ensures that laws passed by Congress are constitutional. This reckless bill would take away the Supreme Court’s authority to decide whether a federal law is constitutional.

“Stripping the federal courts of their ability to review laws is wrong,” Anders continued. “Just last week, the Senate had the courage to reject amending the Constitution, but now House leaders seek to violate it.”

The Marriage Protection Act (H.R. 3313) would deny the Supreme Court and all other federal courts the ability to consider any challenges to the cross-state recognition section of the Defense of Marriage Act. It would deny gay and lesbian couples the right to even have their day in federal court, thereby violating both the Equal Protection Clause and the separation of powers principle.

The only option left for challenging DOMA would be in state courts. But because the bill strips the U.S. Supreme Court of jurisdiction to hear DOMA challenges, there could potentially be as many as 50 different interpretations of the constitutionality of DOMA, as each of the 50 state supreme courts would be a final authority on the constitutionality of DOMA. Without the final voice of the Supreme Court and the supremacy and uniformity of federal law, legal chaos could ensue.

Former member of Congress and author of DOMA Bob Barr has expressed deep concern about the court-stripping legislation. In a letter sent to Congress, he reiterated his belief that DOMA would withstand constitutional scrutiny, and that he “fears an increased likelihood of an adverse decision [by a state court] on DOMA” if the bill were to pass. Moreover, he reminded members that, “our healthy democracy depends on having three separate and independent branches of government.”

The ACLU also noted that the Act would violate the Equal Protection Clause, as it would punish a specific minority group by completely cutting off federal judicial review of a statute affecting only that minority group.

“The Supreme Court has been clear that no one can close off an entire part of the government to any group of individuals,” Anders said. “Congress cannot and should not shut the federal courthouse door to married gay and lesbian couples.”

The ACLU’s letter on the Marriage Protection Act can be found at:

Former Congressman Bob Barr’s letter can be found at:

A letter from Law Professors on the Marriage Protection Act can be found at:

Every month, you'll receive regular roundups of the most important civil rights and civil liberties developments. Remember: a well-informed citizenry is the best defense against tyranny.

Learn More About the Issues in This Press Release