House passes ban on gay marriage rulings

WASHINGTON -- Despite fierce opposition from the Massachusetts delegation, the Republican-controlled House of Representatives yesterday approved a bill banning federal courts and the US Supreme Court from deciding whether a state must recognize same-sex unions legalized elsewhere.

While Democrats opposed the bill as an unconstitutional subversion of minority rights, Republicans celebrated the passage of the Marriage Protection Act as a necessary check against federal judges who may decide that a same-sex marriage that took place in Massachusetts, the only state where it is legal, must be recognized by another state.

''This debate must be removed from the courts and taken back to the people," said Representative Steve Pearce, Republican of New Mexico, during debate on the House floor. ''This is not a matter of rights . . . It's a matter of democracy."

The bill is aimed at limiting legal challenges to the 1996 Defense of Marriage Act, which passed Congress by a wide margin and was signed into law by President Clinton after Hawaii's Supreme Court ruled in favor of same-sex marriages. In 1998, Hawaii amended its constitution to ban such marriages.

Yesterday's Republican victory, by a vote of 233 to 194, was won a week after the Senate shot down a constitutional ban against gay marriage on a 50 to 48 procedural vote, 19 votes shy of the two-thirds majority it needed to move forward. President Bush had endorsed the amendment, widely criticized by Democrats as a political ploy to divide their party, as essential to preserve the ''sanctity of marriage." But six Senate Republicans refused to support the ban.

Republicans have sought to use the gay marriage issue against Democrats, particularly presumptive presidential nominee John F. Kerry, who skipped the Senate vote but said he opposes the national ban. But Senate GOP leaders couldn't even muster enough votes in their own party caucus to move the measure forward.

The amendment is also expected to fail this fall in the House, where lawmakers on both sides are skittish about tinkering with the Constitution and discussing such a controversial issue in an election year. Yesterday's vote gave House Republicans a chance to force Democrats to go on the record about gay marriage just days before the Democratic National Convention.

The office of Senate majority leader Bill Frist, Republican of Tennessee, said yesterday that it was unclear if or when the Senate would take up the House bill.

Led by speakers from the Massachusetts delegation, Democrats said the Marriage Protection Act violated gay rights and was yet another political distraction from more serious national concerns.

''This bill seeks to solve a problem that doesn't even exist. Let's not change the subject for political reasons," said Representative James P. McGovern, Democrat of Worcester. ''This bill would set a dangerous precedent."

Ron Schlittler, executive director of the gay-rights group Parents, Families and Friends of Lesbians and Gays, said the bill was the latest Republican assault of the rights of gays and lesbians. ''Courts protect a disenfranchised minority from the abuses of the majority," he said. ''This closes the door right in their face."

Pearce said the bill didn't deny gay rights, but upheld ''natural law."

''Gays and lesbians should be allowed to marry, but if they want to marry they will have to marry men and women," he said. ''This bill does not eliminate any group from the Constitution."

Representative John Hostettler, Republican of Indiana and author of the bill, said that the Constitution grants Congress the power to decide what federal courts can and cannot hear. ''The US Constitution is very clear that Congress has the authority to regulate all appellate cases," he said. ''Anyone who reads the Constitution and has a basic understanding of grammar understands [that]."

But Richard Fallon, professor of constitutional law at Harvard University, says the issue is more complicated than either side claims.

''It is certainly right [that] Congress can give [federal courts] less than complete jurisdiction. They have done it many times in the past," he said. ''But this bill also takes jurisdiction from the Supreme Court of the United States." Fallon said there is little legal precedent in this area.

Representative Barney Frank, Democrat of Newton, said the bill sets a dangerous precedent of its own by making the Constitution ''a matter of multiple choice."

''The US Constitution would mean different legally binding things in different states," he said. ''You are saying that there will be no more uniformity in the Constitution and that it will be subject to dozens of interpretations."

Jessica E. Vascellaro can be reached at jvascellaro@globe.com.