Constitutional pushback

WASHINGTON—Arguing that the U.S. Supreme Court’s same-sex marriage rulings on Wednesday set a dangerous precedent by stripping Congress’ policy-making power, some conservative House Republicans are planning to reintroduce a Federal Marriage Amendment.

The effort, led by Rep. Tim Huelskamp, R-Kan., to enshrine in the Constitution the definition of marriage as a union between a man and a woman may begin as soon as this week. But there may be little appetite for such a push among the Republican congressional leadership team.

Huelskamp said the 5-4 court decision striking down portions of the federal Defense of Marriage Act (DOMA) and another 5-4 ruling that dismissed an appeal on California’s Proposition 8 are examples of justices choosing ideology over the Constitution.

“A narrow radical majority of the court has substituted their personal preferences on marriage for the will of the voters and their elected representatives here in Washington,” Huelskamp said.

Rep. Tom McClintock, R-Calif., said he was “baffled by the inconsistency of the rulings.” In the decision against sections of DOMA, the court said the federal government had no constitutional authority to contradict the states’ definition of marriage. But, according to McClintock, in the Proposition 8 case, “The justices let stand a decision that denies a state to do preciously that.”

In 1996, a bipartisan congressional majority that included many Democrats passed DOMA. Then-President Bill Clinton signed into law the measure protecting traditional marriage. Rep. John Fleming, R-La., noted how the court called unconstitutional a bipartisan law like DOMA, while last year the court upheld a law, Obamacare, which passed Congress on a strictly partisan basis.

Californians in 2008 passed a ballot initiative, called Proposition 8, which created a state constitutional amendment that defined marriage as between one man and one woman. But California officials have failed to act on the initiative. In refusing to hear the Proposition 8 appeal, the court, according to Huelskamp, “discarded the votes of 7 million Californians who voted to defend traditional marriage.”

“It is a loss for democratic self-government,” added Rep. Vicky Hartzler, R-Mo. “With the Supreme Court denying them standing, they have left the people voiceless.”

It is uncertain how many co-sponsors Huelskamp would get for his constitutional amendment. A similar effort to add the traditional definition of marriage into the Constitution failed in 2006. Early indications suggest that Republican leaders on Capitol Hill seem happy to pass this debate onto the states.

Saying he is “disappointed” by the rulings, House Speaker John Boehner, R-Ohio, released a statement in which he stressed that the “robust national debate over marriage will continue in the public square, and it is my hope that states will define marriage as the union between one man and one woman.” Boehner’s pep talk to state conservatives was echoed by House Majority Leader Eric Cantor, R-Va.

“I’m disappointed in this decision, and the marriage debate will continue in the states,” read Cantor’s statement.

Meanwhile, in a closed-door meeting after the rulings were issued, other House Republicans urged caution. Rep. Justin Amash, R-Mich., told his fellow party members to be “judicious in your response,” according to published reports.

On the Senate side of the Capitol, the response was even more muted among conservatives. Senate Republican Leader Mitch McConnell of Kentucky did not issue a statement on the rulings. But McConnell’s counterpart, Senate Majority Leader Harry Reid, D-Nev., pledged he would soon bring to the Senate floor the Employment Non-Discrimination Act, which would provide new workplace protections for gays, lesbians, and bisexuals.

Sen. Marco Rubio, the Republican from Florida who is a likely presidential candidate in 2016, did issue a lengthy statement Wednesday, arguing that the lawmakers who passed DOMA 17 years ago were not acting with malice or intent to “demean” a class of people.

“The sweeping language of today’s majority opinion is more troubling than the ruling itself, as it points to further interference by the court in the years to come,” Rubio said. “These types of disagreements should be settled through the democratic process, as the Founders intended, not through litigation and court pronouncements.”

Conservatives on Capitol Hill did welcome the fight on the state level, where so far 37 states have passed initiatives upholding traditional marriage. But some House Republicans said they also worried that, as the definition of marriage is fought in individual states, unelected judges in courts may step in and override voters’ wishes.

“Decisions like this makes the people’s voices muted, and people say, ‘Why should I even vote because a court is going to wipe away the decisions I made,’” said Rep. Doug LaMalfa, R-Calif. “So that takes away the faith people have in the system.”

LaMalfa added that religious groups may find themselves even more on the defensive in the aftermath of the court’s rulings: “I believe they now want to go on and force their way into people’s religious freedoms and see that churches may have to perform things that they are against within their intuitions.”

Rubio tried to offer a gentle warning to both sides of a debate that will continue to divide the nation: “My hope is that those of us who believe in the sanctity and uniqueness of traditional marriage will continue to argue for its protection in a way that is respectful to the millions of American sons and daughters who are gay. It is also my hope that those who argue for the redefinition of marriage to include same-sex marriage will refrain from assailing the millions of Americans who disagree with them as bigots.”