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Spin on the Nebraska Decision

Here’s Ian Ayres take on the Nebraska decision denying the people’s voice in defining marriage and its rights: “Last week’s [decision] is an extraordinary use of the federal constitution to promote continuing legislative deliberation.”

So, basically Ayres and libs like him are saying that promoting continuing legislative deliberation trumps 70% of Nebraskans who lawfully amended their CONSTITUTION to define marriage between one man and one woman. Let’s analyze that just for a moment:

  • Article I of the U.S. Constitution implicitly protects the right to legislative debate or deliberation. How about the constitutional nuggets that Judge Bataillon and Ayres’s implictly rely on? The First Amendment. I don’t see it. The Fourteenth Amendment. I can’t find that either. Bill of Attainer? Nope. In fact, James Madison in Federalist #44 explicitly decries that a bill of attainder is a “legislative interference.” One wonders how Judge Bataillon could possibly justify using the argument because the Nebraska constitutional provision was adopted by the people, not the legislature. Thus, according to Madison the people cannot create a Bill of Attainer, it is only the product of legislative action. Hey Judge Bataillon, that Bill of Attainder argument is pure crap.
  • Using Ayres’s logic, it would be possible for any court to strike down an amendment to the Constitution if that amendment prohibits the maligned group from redressing their grievance. In other words, if I am straight and 2/3 of the House of Representatives and Senate concommitantly with 3/4 of the state legislatures pass an amendment to the U.S. Constitution mandating same-sex marriage, a duplicitious federal judge can strike down the amendment on the grounds that the amendment limits “legislative deliberation.” Give me a break. Ayres would say, “Look there’s legislative deliberation. Two-thirds of the both Houses of Congress and three-fourths of all state legislatures passed the amendment.” But that misses the point. In Ayre’s own words:

    Voter initiatives have many democratic advantages, but they preclude one kind of deliberation. Individual voters have no duty to listen or to speak to people they don’t like. But legislatures are different. A minority view that can find support of a single legislator has the right to be heard.

    “Legislative deliberation” is minority garnering the support of one (not two, not five) legislator and having that legislator espouse that view on the floor of the state legislative, House chamber, or Senate floor. Thus, “legislative deliberation” would be grounds for a judge to declare unconstitutional any amendment to a state or federal constitution, regardless of the amendment procedure employed (by the people or through legislative bodies) because there will always be one person in the United States that is barred from receiving a benefit that he might otherwise enjoy if not for the amendment’s passage whose voice will be permanently muzzled. Unless, of course, a different amendment is passed that supersedes and overrides the prior amendment, but that would be too hard, too massive of a burden for the same-sex marriage advocates, isn’t that right ACLU and GLAD?

    Legislative deliberation is such a shallow and untenable argument for discarding the Nebraskan Constitution. Of course gays in Nebraska would still be permitted to voice their concerns to their state legislators regarding the “bigotry” of the heteronormative marriage provision. However, there only recourse is an amendment endorsing same-sex marriage, which would be very, very difficult. For some reason or another, I’ll predict the outcome: 70% to 30% against. That is the real reason why gays have to go to the courts–the people say NO!

    • This entry was posted on Wednesday, May 18th, 2005 at 8:43 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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