Terry Jeffrey

Republican Rep. John Hostettler of Indiana is a mechanical engineer, who made it his mission to serve among the lawyers on the House Judiciary Committee.

Before he came to Congress, he worked on maximizing the efficiency of coal-burning power plants.

But listening to Dr. D. James Kennedy's radio show on his homeward commute inspired him to start studying the facts behind constitutional controversies. He soon discovered that our national charter was itself an exquisite mechanism, calibrated by its framers to maintain a working balance between the branches of government. Unfortunately, some of its parts had grown rusty from lack of use, allowing federal courts to usurp authority from Congress and the states.

Hostettler ran for Congress in 1994, intending to do something about that. He was elected. Eventually, he secured a seat on the Judiciary Committee.

Today, thanks in large part to his efforts, an often overlooked constitutional provision is being revived in the House. It is Congress's authority to limit the appellate jurisdiction of the Supreme Court.

Article III of the Constitution gives Congress the authority to create the lower federal courts and define their jurisdictions. It also includes the "Exceptions Clause," which says "the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

In 2004, citing these constitutional provisions, Hostettler proposed the Marriage Protection Act (MPA) as an alternative to a constitutional marriage amendment. It states that neither the lower federal courts nor the Supreme Court will have jurisdiction to hear cases challenging the Defense of Marriage Act (DOMA), signed by President Clinton in 1996. DOMA says state governments need not recognize same-sex marriages contracted in other states.

Were MPA to become law, a person could still sue in state court, arguing that a state's marriage law violated the U.S. Constitution. On appeal, the state supreme court could decide for or against the law, based on its interpretation of the U.S. Constitution.

But that opinion would be contained within that state. No federal court could take it up on appeal and use it to revolutionize marriage laws nationwide.

"This is superior to a marriage amendment," Hostettler told me, "because I need the majority of the House, the majority of the Senate and the president's signature. I don't need two-thirds of the House, two-thirds of the Senate and three-fourths of state legislatures."

A federal marriage amendment has twice failed to achieve the needed super-majorities in Congress. But in 2004, the House approved Hostettler's MPA, 233 to 194. Twenty-seven Democrats voted for it.


Terry Jeffrey

Terence P. Jeffrey is the editor-in-chief of CNSNews

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