Congress Moves to Suspend Judicial Review to Protect the Unconstitutional Defense of Marriage Act

24 p. ; This student paper has been award the 2004-2005 Raymond W. Schowers Prize.Striving to preserve the institution of marriage for heterosexual couples, Congress passed the Defense of Marriage Act (DOMA) in 1996. DOMA was billed as promoting state autonomy by letting the states decide whether same-sex couples might legally wed, and whether or not to validate one another's decisions regarding same-sex marriage. Not convinced that the states could correctly decide so vital an issue, Congress launched the Federal Marriage Amendment in May 2003, defining marriage as restricted to a legal union between one man and one woman across the nation. However, fearing the light of scrutiny by what they call the activist judiciary, Republicans introduced the Marriage Protection Act (hereafter MPA) on October 16, 2003, to prohibit any federal court from reviewing cases arising under DOMA. On July 22, 2004, the MPA passed the House by a substantial majority. At the end of 2004, the MPA remained lodged in the Senate Committee on Judiciary. On March 30, 2005, it was introduced to the House yet once more, signed by 59 additional co-sponsors, all but two of them Republican. This article argues that DOMA and the MPA are unauthorized exercises of Congressional power and that they strip a disfavored class of citizens of constitutionally protected rights. Part I of this article will review DOMA, while Part II considers and refutes Congressional arguments used in support of the MPA.University of New Mexico School of La