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Judicial Activism Strikes Again

Today, a federal judge for the District Court of Nebraska struck down a provision of the Nebraska state constitution that limited marriage to heterosexual couples and prohibited civil unions. Article I, section 9 of the Nebraska constitution states:

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or any other similar same-sex relationship shall not be valid or recognized in Nebraska.

The suit, brought by Citizens for Equal Protection, Nebraska Advocates for Justice and Equality, and (you guessed it) the ACLU, claim they only want a “level playing field”–in other words, “an opportunity to convince the people’s elected representatives that same-sex relationships deserve legal protection.” Hmmm . . . Isn’t the state legislature a body that stands in lieu of the people they represent and not the other way around? Moreover, isn’t our republican form of government a goverment of “We the People”? If the citizens of a state pass an amendment to their state constitution, is not that voice the ultimate arbiter? Basically, what Citizens for Equal Protection et al. desire to do is (1) cirumvent the people’s will through the courts and (2) further circumvent their will by lobbying the people’s elected representatives in order to “convince” them that the people’s voice does not matter and same-sex protections should be legalized regardless of the vox populi.

Interesting facts in the introductory pages of Judge Bataillon’s opinion:

  • 50 to 75% of the signatures gathered to get the marriage provision on the Nebraska ballot were by The Church of Jesus Christ of Latter-day Saints (the Judge doesn’t appear to like this fact, otherwise, why would he feel the need to identify the Mormon church)
  • Nebraskans approved the marriage provision 70% to 30%
  • A lesbian couple “married” in Vermont who decided to jump ship and move to Nebraska provided the impetus for the lawsuit

    • Also, the plaintiff lesbians and gays are held in the highest of lights by Judge Bataillon. They are mostly “employed professionals” (as opposed to unemployed non-professionals and the homeless) and are involved in “long-term committed relationships” and are “raising children.” Oh goodie. So what? A mother or granddaughter and father and nephew can be involved in similar long-term relationships and raise children together as well. What about those relationships, Judge Bataillon?

    Basically, the judge held that the First Amendment right to association and the Equal Protection Clause are violated because gays and lesbians can’t coalece with the Nebraska legislatures and petition them to address their grievance (i.e., marriage rights and rights derivative of marriage for same-sex couples). The judge also found that Section 29 was an unconstitutional Bill of Attainer (this position is beyond believeable and I refrain from further comment). Beyond the legal “basis” for the Judge’s decision, here are some more interesting assertions by His Judgeness:

  • “Notwithstanding policies preferring marriage, there are or may be legitimate reasons, consistent with the goals of promoting stable family relationships and protecting children, for extending some rights or obligations traditionally linked to marriage to other relationships.” First, the judge acknowledges implictly that there might not be any legitimate reason. Second, the judge does not bother to include any of those “legitimate reasons.” That’s because there are none.
  • “The institution of marriage is difficult to define.” Judge, I don’t know if you actually read the briefs before your court, but, marriage has always been defined from the beginning of time as the union of one man and one woman. It’s only recently that activist judges like yourself have rewritten the marital lexicon by fiat.

    This decision stinks. Hopefully, it’ll be overturned. Read more about it here.

    • This entry was posted on Thursday, May 12th, 2005 at 8:30 pm and is filed under Same-Sex Marriage et al.. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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