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The Congressional Appropriations Power and Same-Sex ‘Marriage’

Building the Resistance to Same Sex Marriage…
(twelfth in a series of articles)

By Virginia Delegate Robert G. Marshall

If the U.S. Supreme Court rules 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, if not on the very day of a Supreme Court decision, should the anomaly of same-sex “marriages” be blessed by the highest court in the land. And, if pursued by defenders of real marriage, this approach will require every 2016 congressional and presidential candidate to take a position on marriage.

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 any 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.

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 cut off 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 to overthrow the Nicaraguan government were blocked in 1982.

Some may question if it is “constitutional” to prohibit spending money to implement same-sex “marriage” if the Supreme Court finds that the Constitution requires recognition of 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.

If the Supreme Court twists 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,” the decision 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 if it wrongly applies the Constitution, while arrogantly charging that Americans who disagree with them are bigoted and hateful.

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.

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 is 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 the 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.”


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