As reported in this AP story, the House of Representatives is considering Indiana Republican Congressman John Hostettler's proposal that would bar federal courts from ruling on state bans on gay marriage. "The legislation would strip the Supreme Court and other federal courts of their jurisdiction to rule on challenges to state bans on gay marriages under a provision of a 1996 federal law that defines marriage as between a man and a woman."
For an interesting review of this legislation, listen to this NPR story, "House Takes Up Role of Courts in Marriage Law," from Morning Edition, Thursday , July 22, 2004.
[Update] The bill passed the House today, per this entry from How Appealing, which includes links to the vote tally and the bill itself (HR 3313), which basically says: "‘‘§ 1632. Limitation on jurisdiction. No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.’’ the title of the bill is "To amend title 28, United States Code, to limit Federal court jurisdiction over questions under the Defense of Marriage Act."
[More] The Friday Washington Post will report:
The House approved a bill yesterday to strip the federal courts of jurisdiction over same-sex marriage cases, despite warnings by opponents that the measure is unconstitutional and would open the floodgates for efforts to prevent judges from ruling on other issues, from gun control to abortion. * * * The bill, drafted by Rep. John N. Hostettler (R-Ind.), would prevent such a ruling by denying all federal courts, including the Supreme Court, jurisdiction to rule on the constitutionality of the Defense of Marriage Act, a 1996 federal law that says that no state has to recognize same-sex unions established in any other state. * * *Posted by Marcia Oddi at July 22, 2004 03:42 PMBut the bill's congressional opponents, several constitutional scholars and a wide array of civil liberties groups called it a nearly unprecedented attack on the constitutional separation of powers among the judicial, legislative and executive branches of government. * * *
In a letter to lawmakers this week, Chai Feldblum, a professor at Georgetown University Law Center, said the last time that Congress passed a law stripping the Supreme Court of authority to hear a constitutional challenge was in 1868, when it feared that the court might invalidate the military Reconstruction of the South after the Civil War.
"When legislators rail that 'unelected judges' are finding legislative acts unconstitutional, they are attacking the very structure of our democracy," Feldblum wrote.
In recent decades, there have been calls for Congress to strip the courts of jurisdiction over numerous issues, including school desegregation, abortion and public displays of the Ten Commandments. But none has passed. Whether the Supreme Court would agree that Congress has power to wall off such areas is unclear, because the question has not been tested, scholars said.