Marriage Protection Act Passes House, Trans Activists Grossed Out

For Immediate Release: Dated July 23, 2004
From: The National Transgender Advocacy Coalition (NTAC)
Contacts: Robyn Walters, Seattle, Washington
Chair, Vanessa Edwards Foster; Houston, Texas
Contact Email: ntacmedia [at] aol.com
media [at] ntac.org
Contact Phone: 832-483-9901
360-437-4091
Website: http://www.ntac.org


Marriage Protection Act Passes, Transgenders Disgusted By House Vote

By a vote of 233 to 194, the United States House of Representatives, passed the Marriage Protection Act (HR 3313). If passed by the Senate and signed into law, the Marriage Protection Act would strip federal courts of jurisdiction over legal challenges to the Defense of Marriage Act (DOMA). The bill blocks lesbian, gay, bisexual, and transgendered peoples' access to the federal courts for remedy of marriage discrimination, and may present constitutionality problems.

The bill now awaits consideration by the U.S. Senate, but is not yet on their docket.

“This passage by the House is not only disgusting, it also sets an alarming precedent by stripping away citizens’ ability for legal recourse,� said Vanessa Edwards Foster, chair of the National Transgender Advocacy Coalition (NTAC) about the House vote. “What’s ironic is that this law was supported and push through by Republicans. Historically, that political party has stood firmly against government curtailment of individuals’ rights.�

While the Constitution gives authority to Congress to establish lower federal courts and their jurisdictions (e.g., the Circuit Courts of Appeal, Bankruptcy Courts, etc.), Congress has never passed a law depriving the federal courts of jurisdiction to hear cases involving constitutional matters. All sides agree that the challenges to the 1996 Defense of Marriage Act (DOMA) will be based on Constitutional issues, including its Full Faith and Credit and Equal Protection clauses.

There have been "court stripping" bills introduced in the past for attempting to take away federal court jurisdiction over cases involving abortion and flag burning. Those measures have died in committee because members have recognized their unconstitutionality.

"The so-called Marriage Protection Act is potentially more dangerous to transsexuals than even the FMA,� said attorney Katrina Rose, “because the federal courts would have to ultimately interpret an anti-gay-marriage constitutional amendment regarding any application to heterosexual marriages involving transsexuals.� Rose, a transgender activist and former board member of NTAC also noted that analysis of “the abundance of legislative history of transgender law and anti-same-sex marriage law would conclusively show that such heterosexual marriages were not intended as targets.

“At some point a state law action is going to get into federal court via diversity in which the validity of a marriage involving a transsexual or an intersexed person will be challenged under DOMA.�

By eliminating federal court jurisdiction over questions of interpretation of the Defense of Marriage Act (DOMA), the MPA would shield DOMA from federal judiciary review, thereby shutting out a distinct group of people from the federal courts. This runs counter to the basic Constitutional principle of Equal Protection. By removing access to the federal courts, the MPA would deprive individuals of their Fifth Amendment right to Due Process.

The MPA would also disrupt the "checks and balances" laid out in the United States system of government. In order for individuals to be protected from overreaching by the legislative and executive branches, an independent judiciary is necessary to maintain the principle of separation of powers.

“It’s sad and distressing that with all of the issues facing the government, this particular Congress and this Administration have focused their priorities on marriage issues,� added Foster of NTAC. We’re a country at war, we’ve got escalating record deficits, inflation is creeping upward, real wages outside of the upper ten percentile are falling, and everyone below that is being squeezed under the crush. Considering all these other issues, one would think that GLBT rights would not be the most urgent threat to this nation. But noting the way this government operates, it clearly must be to them.�
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Founded in 1999, NTAC - the National Transgender Advocacy Coalition - is a §501(c)(4) civil rights organization working to establish and maintain the right of all transgendered, intersexed, and gender-variant people to live and work without fear of violence or discrimination.