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In recent years, the battle over same sex marriage has intensified. In 2004, the mayor of San Francisco, California directed the issuance of marriage licenses to same sex couples. Just months later, however, the state’s highest court ruled that the 4,000 plus same sex marriages were void. The Massachusetts Supreme Court decided in 2003 that a state law banning same sex marriage was unconstitutional. The federal Defense of Marriage Act (DOMA), which was signed into law by President Bill Clinton in 1996, defined “marriage” as a union of a man and a woman. Between 1996 and 2004, nearly 40 states enacted some version of a “Defense of Marriage” law.

As civil rights advocates voiced their disapproval of the federal DOMA and similar state measures, supporters of such laws realized that challenges to the constitutionality of the laws were inevitable. Hoping to avoid these challenges, some federal legislators wrote a bill called the Marriage Protection Act of 2004. In July 2004, the United States House of Representative passed the Marriage Protection Act. As of November 2004, the bill had not yet been passed in the Senate. It is anticipated that proponents of the bill will likely face an uphill battle in the Senate. Civil rights advocates say that if the Marriage Protection Act does become law, it would be the first time that Congress has completely “stripped” all federal courts from considering a federal law.

If passed, Marriage Protection Act said to permit “jurisdiction stripping”

If the Marriage Protection Act becomes law, federal courts–including the United States Supreme Court–could not force states to recognize same sex marriages that were entered into in other states. Critics of the Marriage Protection Act say that the law would be an impermissible attempt at “jurisdiction stripping.” They say that federal courts would no longer have the authority to hear cases involving the Marriage Protection Act itself and the federal DOMA. This would be in violation of the constitutional principle of separation of powers among the three branches of the federal government.

Supporters of the Marriage Protection Act count President George W. Bush among themselves. It is said that President Bush believes that a state cannot be forced to recognize a same sex marriage that is contrary to its own marriage laws. President Bush has also voiced his approval for the Federal Marriage Amendment, which would have amended the United States Constitution to forbid any state from permitting same sex marriage. Although the Federal Marriage Amendment did not receive sufficient votes in the House in 2004, its sponsors and supporters vowed to reintroduce the measure at a later date.

In addition to stripping federal courts of the authority to hear many cases involving same sex marriages, opponents of the Marriage Protection Act contend that it violates the Equal Protection Clause of the Constitution. Specifically, they say that the law would deny judicial review to a minority group, namely gays and lesbians. Judicial review of the federal DOMA is necessary, they further say, because that law itself violates the constitutional requirement that the states give “full faith and credit” to same sex marriages permitted by other states.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.