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Now that the U.S. Supreme Court has ruled that states must recognize so-called same-sex “marriage,” does that mean that proponents of real marriage have only the remedy of a Constitutional Amendment to block the effects of such a decision? No! While some men and women of good will have claimed that an amendment to the federal Constitution is the only remedy available, they have not thought through the problems associated with such a strategy. History demonstrates that this strategy is only rarely successful. Only four Supreme Court decisions have ever been reversed by Constitutional Amendment since 1789. Moreover, Liberals, and faux conservatives who duck social issues, would love to send grassroots conservatives on a futile, wild goose chase in a multi-year pursuit of a Marriage Amendment to the U.S. Constitution.
There is another way. Congress can immediately take action on a strategy to block the Obama Administration’s implementation of the Court’s decision through the use of riders to appropriations bills which will come before Congress this summer and fall.
Suggested by James Madison, both liberals and conservatives have successfully used this strategy to change public policy over the past 50 years. This approach is constitutional. It can be set in motion within days. And, if pursued by defenders of real marriage, this approach will require every 2016 congressional and presidential candidate to take a position on marriage.
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The Appropriations power of Congress can and must be used to block implementation of unlawful rulings by out-of-control federal judges. Members of Congress would simply attach amendments to pending Appropriations bills later this summer to prevent the Obama Administration from implementing the pro-same sex marriage decision.
Does Congress have this power? Yes!
The Constitution provides that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law …” Art. 1, Sect. 9.
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James Madison noted: “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” Federalist 58. Every Appropriations bill consists of page after page of limitations, conditions, or prohibitions on how our federal tax dollars may be spent, if spent at all. Such money prohibitions which changed history include:
- The Vietnam War ended with the 1975 cutoff of American military aid;
- Medicaid funding of abortion on demand was banned via the Hyde Amendment in 1976;
- Funds to assist anti-communists seeking to overthrow the Communist government in Angola in 1975-76 were prohibited;
- The implementation of a published IRS ruling under President Jimmy Carter which compelled private, predominantly Christian schools to prove they were not discriminating on the basis of race in order to keep their tax-exempt status in 1979 was blocked by an Appropriations Amendment from former Congressman Robert Dornan (R-CA); and
- Tax funds to assist Contra rebel groups in overthrowing the Nicaraguan government were blocked in 1982.
Some may question if it is “constitutional” to prohibit spending money to implement same-sex “marriage.” President Andrew Jackson answered that question in his 1832 veto message of the National Banking bill, where he noted: “[t]he authority of the Supreme Court must not … be permitted to control the Congress or the Executive when acting in their legislative capacities.” President Jackson’s Veto Message Regarding the Bank of the United States; July 10, 1832.
The Supreme Court’s twisting of the Fourteenth Amendment–enacted after the shedding of blood of over a half a million Americans for equal rights for black Americans–into a mandate for same-sex “marriage” must be challenged immediately and effectively. Many millions of Americans who voted to support and adhere to the millennia-old consensus on marriage must question the authority and judgment of the Court.
Past Justices did not always claim such sweeping infallibility. Referring to past controversial decisions of the Supreme Court, Chief Justice Earl Warren (1953-1969) commented in 1962 on the World War II Japanese internment cases that: “… the fact that the Court rules in a case like, Hirabayashi that a given program is constitutional, does not necessarily answer the question whether, in a broader sense, it actually is.” Earl Warren, The Bill of Rights and the Military, 37 N.Y.U. L. REV. 181, 193 (1962), Reprinted in, The Air Force Law Review, Vol. 60, 2007, pp 16-17.
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Providentially, I was involved in the initiation of (i) the successful Hyde Amendment relating to abortion, and (ii) the Dornan Appropriations Amendment blocking Jimmy Carter’s efforts to put private schools under the thumb of the IRS, on pain of losing their tax-exempt status. The stories of these two efforts are instructive as to the power that Congress has to fix such problems.
In the Spring of 1976, a friend provided me with the results of a FOIA request showing the Department of Health Education and Welfare (now HHS) had paid for roughly 300,000 Medicaid abortions. As a private citizen, I went to the U.S. Capitol and requested a Page to have Representative Bob Bauman (R-MD) come off the House Floor and meet me at the Cloakroom door. (Bauman and I were both active in Young Americans for Freedom many years earlier.) I showed Congressman Bauman the FOIA documents and suggested that an amendment to the HEW Appropriations Act prohibiting the use of federal tax money for abortion would be in order. He said he knew a freshman Congressman who might be willing to offer the amendment cutting off all funding for elective abortions. That first-term member of Congress turned out to be Representative Henry Hyde (R-IL). The abortion funding restriction — widely known as the Hyde Amendment — has passed Congress every year since 1976.
As a legislative assistant to Congressman Dornan, I worked with the late Jack Clayton of the National Association of Evangelical Schools to devise an amendment to protect private schools by adding a rider to a Treasury appropriations bill prohibiting the use of any federal money to implement the IRS Ruling which had compelled mostly Christian schools to jump through bureaucratic hoops to demonstrate they were not discriminating to the satisfaction of a hostile IRS in order to keep their tax exempt status. This was not a partisan effort. Indeed, I worked with Missouri Democratic Senator Eagleton’s staff as Lutheran Missouri Synod church schools were particularly burdened by the IRS Ruling. Senator Eagleton made sure that the Senate approved the House-passed Dornan Amendment. That Amendment became part of the Treasury Appropriations bill and was signed into law, stopping the IRS crusade against Christian schools.
In April 1980, in Harris vs. McRae, the U.S. Supreme Court upheld as constitutional the Hyde Appropriations Amendment banning taxpayer paid abortions. In 1981, during a break in a Conference Committee meeting held in the Capitol building, I was conferring with my boss, Mr. Dornan, when liberal New York Democrat Congressman Charlie Rangel, who supported legal abortion and abortion funding, came over to talk with us about that decision. Rangel told us that Congress could never give up the “power of the purse.” He said: “You know, we differ on abortion. But if the Supreme Court had said that they were going to tell us how to spend our (i.e., taxpayer) money, I would have put in court-stripping bills faster than you could!” I remember Rangel pressing his finger on Dornan’s chest as he spoke, in a firm but friendly manner.
The appropriations amendments which will be required to blunt the effect of the Supreme Court’s decision mandating recognition of same-sex marriage must prohibit the use of monies or fees administered by an executive agency, judicial agency or court, or presidential executive order, directive, or guideline or similar agency action to implement any aspect of the ruling in the Supreme Court marriage case, Obergefell v. Hodges, to prevent the following:
- Removing the tax exempt status of any church, institution, university, school, or non-profit entity declining to facilitate or participate in same-sex “marriage”;
- Requiring any federal contractor or grantee to accommodate same-sex “marriage”;
- Disciplining or fining any person who declines to participate in a same-sex “marriage”;
- Requiring federal employees to undergo sexual attitude restructuring education to ensure their acceptance or accommodation of same-sex “marriage”;
- Withholding any federal grant or contract money to any state, territory, or possession declining to implement same-sex “marriage” in schools or other agencies of state government;
- Withholding federal money from any state, territory, or possession which does not change state, etc. legal codes to accommodate same-sex “marriage”;
- Allowing federal courts to hear challenges to any state or federal law affirming that marriage is only a relationship between one man and one woman. (See Article III Power to Curb Federal Court Jurisdiction.)
An appropriations bill is much easier to pass than a normal bill. Because funding bills are necessary to keep the government open, they must be considered and passed yearly. Other bills can be buried in committee, but appropriations bills cannot be ignored.
If our Republican House of Representatives and our Republican Senate place an appropriations rider on all spending bills stating “no funds appropriated hereunder may be used to implement the decision of the U.S. Supreme Court in Obergefell,” it would not undo or reverse the Supreme Court’s same-sex “marriage” decision. However, it would make Obergefell a decision that was never enforced at the federal level.
If Congress wanted to get creative, and send a message to a Supreme Court that had usurped Congress’ and the states’ role to decide policy, it could also consider an appropriations amendment to limit the number of clerks assigned to each Supreme Court Justice to a single clerk. If the Justices have so much time on their hands that they can attempt to defy the laws of Nature and Nature’s God, they may become more circumspect in crusading for the liberal agenda. (I actually had such an amendment drafted for Congressman Dornan while the Harris v. McRae case was pending. Had the Hyde Amendment been declared unconstitutional by the U.S. Supreme Court, Congressman Dornan intended to offer that amendment.)
It is most crucial that citizens upholding one man, one woman marriage make it immediately clear that they expect their Members of Congress to support anti-same-sex marriage appropriations riders, and to secure record votes to show the public how they voted on the specific question. To avoid taking a stand with a recorded vote, Members of Congress might try to lump all the appropriations bills into one “Continuing Resolution.” (A continuing resolution is a measure which generally funds the entire federal government in one appropriations bill utilizing spending conditions from previous years but with different spending amounts.)
Should the Republican leadership decline to take separate votes on individual appropriations bills to protect marriage, then the leadership should be removed for abandoning their stated policy beliefs as contained in the 2012 Republican Platform: “The union of one man and one woman must be upheld as the national standard.”
In April 2013, the leaders of thirteen social conservative organizations wrote to Republican National Chairman Reince Priebus, challenging the conclusions of a RNC report which concluded that the Reagan Coalition embracing social issue conservatives was a political relic and should be abandoned. The conservative leaders told Priebus: “We respectfully warn GOP leadership that an abandonment of its principles will necessarily result in the abandonment of our constituents ….”
Incumbent Members of Congress who fail to amend appropriations bills to protect natural marriage need to face primary opponents who will amend appropriations bills. We must ensure that protection of marriage becomes a necessary condition for receiving our votes in the 2016 elections and beyond.
No Congressman or Senator should be given a pass or be excused if they claim that the House or Senate Rules must prevent record votes. There are procedures to ensure record votes are taken. For example, in the House, only 25 members are needed to call for a record vote on an amendment to an appropriations bill.
The risk of permanent damage to individuals, our institutions, and our nation is too great to allow those who represent “We the People” to duck accountability for defending marriage as it has been understood for millennia. Failure on our part to demand that our representatives use all legal powers they have means we are giving up the fight, which would make us partially responsible for the evils that will ensue.
Virginia Delegate Robert G. (“Bob”) Marshall is a senior member of the Virginia House of Delegates, currently serving his 12th term. First elected in 1991, he has consistently addressed a wide range of policy concerns including fiscal and social as well as civil liberty issues. Marshall is the co-author of the 2006 voter-approved traditional Marriage Amendment to the Constitution of Virginia. He is also the author of 2012 statute preventing Virginia from assisting the federal government in the arrest and detention of American citizens without trial, presentment of charges, or representation by counsel of alleged violations of federal security laws, and the author of a 2015 law requiring Virginia law enforcement to secure a warrant to track cell phone or computer identification and location data. Marshall has been married to his wife Cathy for 39 years; they have five children and five grandchildren. He can be reached at [email protected].
This article is part of a series on “Building Resistance to Same-Sex Marriage.” Please support this important work with a contribution to the U.S. Justice Foundation. Permission is freely granted to publish, copy, reproduce, distribute, or excerpt from this article for any purpose.
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