Federal Judge Strikes Down Nebraska Same Sex Marriage Ban

A Federal judge overturned a Nebraska constitutional amendment approved by 70% of the voters limiting marriage to one man and one woman. The judge ruled that the constitutional amendment was unconstitutional.

journalstar.com/articles/2005/05/12/local/doc4283ca7f535cc378664083.txt

Instead of further feeding the destructive culture war politics by making these amendments defining marriage, why not just pass laws making it easier for adults to extend legal rights to whomever they wish? For instance, the article mentions that same-sex couples are unable, under current law, to “visit a partner in the hospital, make funeral arrangements for partners, and make other decisions that a family member would make.”

So, defuse it. Give not only same-sex, but any other consenting adult, the right to designate a non-family member to be able to visit in the hospital, make funeral arrangements, etc. This would take all the substantive fire out of the same-sex marriage push, leaving it as a merely symbolic gesture. Sure, there’d still be folks pushing for it on symbolic grounds, but they’d have far less public support and, crucially, far less legal grounds as they can’t argue they are being denied rights. Plus, traditional-marriage folks come out looking a lot less mean-spirited as they can no longer be accused of discrimination or religious tyranny.

Is this the same Judge that ruled the ban on partial-birth abortions is unconstitutional right after it became law?

One more judge to over turn the will of the people. It’s sad. How did judges get so much power???

[quote=JimG]A Federal judge overturned a Nebraska constitutional amendment approved by 70% of the voters limiting marriage to one man and one woman. The judge ruled that the constitutional amendment was unconstitutional.

journalstar.com/articles/2005/05/12/local/doc4283ca7f535cc378664083.txt

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How can a judge declare an amendment to the constitution to be unconstitutional? Who the $^#%%@ do these judges think they are?

The judge ruled that the ban went beyond defining marriage as between a man and woman. He said that it limited plaintiffs’ access to the legislative process.

If that last is so, then he ruled correctly. The Amendment should have been worded better - or will be next time around to preserve marriage as between a man and a woman in Nebraska.

From the Volokh Conspiracy, Eugene Volokh expects the appeal court to reverse the decision.

Federal Court Strikes Down Ban on Same-Sex Marriage: The decision, from a federal trial judge in Nebraska, is here. I think it’s quite mistaken, and will be reversed on appeal. A few thoughts: volokh.com/posts/chain_1115937609.shtml

[quote=Philip P]Instead of further feeding the destructive culture war politics by making these amendments defining marriage, why not just pass laws making it easier for adults to extend legal rights to whomever they wish? For instance, the article mentions that same-sex couples are unable, under current law, to “visit a partner in the hospital, make funeral arrangements for partners, and make other decisions that a family member would make.”
.
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I would agree if I thought that it would work. But I don’t think that it will. First, a couple of things, I work at a hospital in Michigan and our VP came on the radio and said that the ‘denial of visitation’ is bogus. No public hospital at least in this State does it. I know we have a ‘life partner’ category under the ‘married y/n’ section when you get admitted. Secondly, the pro GM folk are talking about the ‘thousands’ of rights they are denied. Yet, they seldom enumerate them. When they do, like the hospital thing, they are often inaccurate or only partially accurate.

As to their stance on GM, it isn’t that they want all these things, its that they want public, official acceptence of their intimate unions. They view it as a civil right, and they have been successfull in painting it that way. And no amount of ‘civil unions’ compromise will appease them. They have the ball and are driving and want to go for the end zone. And the pitiable state of our judiciary will help them along, essentially recognizing that their desire for recognition and marriage benefits is in and of itself a right. Which opens up some really terrifying possibilities legally. (Its not a red herring to bring up polygamy or inter-familial relationships. Cases have already started on the premise that the right of an individual to marry is a constitutionally protected civil right).

As a Catholic, I can’t support GM. As a citizen, the best way I think to win, and the best way for the health of our republic, isn’t an amendment that says GM won’t happen, but rather an amendment that says federal courts may not decide the issue, that the issue has to be decided by the populations of the several states.

This allows each state to do what it wants and enforces federalism, and undercuts the imperial judiciary. It would also, IMHO, be easier to pass and be a strike in the right direction for reining in the courts. If they decide it, as seems likely, it will be another wedge tearing the country apart.

Jimbo

[quote=Scott_Lafrance]How can a judge declare an amendment to the constitution to be unconstitutional? Who the $^#%%@ do these judges think they are?
[/quote]

They think they are God.

Stop Judicial Tyranny Now

This is a perfect example of a check on the judicial branch that must be taken. Judges, who invented constitutional review, subsequently and increasingly have decided that any law anywhere under any conditions can be reviewed per the constitution. Of course, they are the ones that decide which ones get reviewd. They then stretched this to mean that the judge’s opinion means more than the constitution so it is morally appropriate to fit a few words of the constitution to match their opinion because judges are the moral authority of the earth. From this line of thought, it is a very small jump to say that judges, absolute rulers that they are, can go beyond constitutional review - they can even rule a constitutional amendment unconstitutional - thus, the judges declare themselves to be the constitution, to whom all executives and legislators take an oath to protect and defend. Perhaps when they take this oath they should also bow down to a judge.

This is ludicrous. Judges are not the moral authority of the earth. God is. Judges should have no right to rule on a constitutional amendment.

[quote=Philip P]Instead of further feeding the destructive culture war politics by making these amendments defining marriage, why not just pass laws making it easier for adults to extend legal rights to whomever they wish? For instance, the article mentions that same-sex couples are unable, under current law, to “visit a partner in the hospital, make funeral arrangements for partners, and make other decisions that a family member would make.”

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The article is incorrect. This is simply not true. Why don’t reporters investigate the actual facts? Why don’t homosexual activists stop feeding the destructive culture of immorality by trying to force a marriage definition change by spreading lies about what rights they do and do not have?

They can. They already have these “rights”.

They will always be accused of being mean-spirited bigots because at the root of the homosexual agenda is to undermine completely religious moral authority. This is why they tell lies about “rights” denied because at the heart of their agenda is not truth but societal acceptance of moral depravity.

[quote=Whalljim]I would agree if I thought that it would work. But I don’t think that it will. First, a couple of things, I work at a hospital in Michigan and our VP came on the radio and said that the ‘denial of visitation’ is bogus. No public hospital at least in this State does it. I know we have a ‘life partner’ category under the ‘married y/n’ section when you get admitted. Secondly, the pro GM folk are talking about the ‘thousands’ of rights they are denied. Yet, they seldom enumerate them. When they do, like the hospital thing, they are often inaccurate or only partially accurate.

[/quote]

There is something to the complaint, in general. I had a dear elderly friend who had a stroke, and his family kinda threw their hands up, scared they would have to take care of him…and it was awfully hard to get through the hospital machinery to take charge. I ended up marrying him and voila, all the doors opened up. He died a year later but at home, with hospice care.

More recently my best female friend went into the hospital and then the nursing home. She has no relatives in the state, no one at all, and it’s always been a little difficult when she’s had her numerous health & mental troubles. The doctors and nurses always ask, are you her daughter? her sister? WHO are you? but it hasn’t really been terrible. I do think there should be a way to designate someone, not necessarily with a power of attorney, but just as an outside coordinator who gets called and informed about the patient’s recovery, transfers etc. the way a close relative would. There are going to be a LOT of elderly singles here pretty soon who will need this.

And yeah, something like that would defuse the main excuse for GM…

Well I won’t repeat the posts by Brad and others but I cannot BELIEVE someone is STILL flogging the dead horse of “we can’t visit each other in the Hospital.” What a crock. Is the press so ignorant they are repeating what the homosexual lobby presents as truth?

There is NOT ONE SINGLE RIGHT two married heterosexuals have that homosexuals cannot create through contract or agreement other than filing joint tax returns. Not one. They can visit each other, live in the same house, leave each other property on death, own property jointly and sadly two homosexuals can adopt children :frowning: or they can procure them by artificial means (IVF, AI, rent a womb).

Whoever said that the real agenda is that they want recognition on par with heterosexual married couples nailed it. In their heart of hearts they know what they have is not equivalent but if they can force society to call them ‘married’ they can keep pretending.

Lisa N

I’m confused so if someone can explain something to me I will be for ever grateful…

How is possible for a federal judge to tell the State that something is wrong. Since the US consitution doesn’t saying anything specfic about marriage then there is nothing wrong with a state limiting it. Plus it is a STATE choice not A federal choice!

Hmm, it seems Judge Bataillon is a Clinton Appointee. Is anyone surprised?

[quote=Philip P]Instead of further feeding the destructive culture war politics by making these amendments defining marriage, why not just pass laws making it easier for adults to extend legal rights to whomever they wish? For instance, the article mentions that same-sex couples are unable, under current law, to “visit a partner in the hospital, make funeral arrangements for partners, and make other decisions that a family member would make.”

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Because that’s not true…a visit to a lawyer will enable a same-sex couple to have all of the above-mentioned rights and privilieges. That’s not their agenda. For some, their agenda is to gain acceptance. For others, it’s more radical…

[quote=Brendan]Hmm, it seems Judge Bataillon is a Clinton Appointee. Is anyone surprised?
[/quote]

He was also chairman of the Nebraska State Democratic Party.

Could this be a case of another liberal activist getting for Democrats what they can’t get at the ballot box?

Nah…everyone knows the U.S. Constitution is clear: legislatures cannot define marriage. Only judges have that power.

You can read it yourself.

It’s in the appendix.

In the small print under “Penumbras”,“Emanations”, “Zimbabwe Legal Precedents”, “UN resolutions” and “Evolving Standards of Decency.”

[quote=beckers]I’m confused so if someone can explain something to me I will be for ever grateful…
[/quote]

I will hold you to that :wink:

How is possible for a federal judge to tell the State that something is wrong. Since the US consitution doesn’t saying anything specfic about marriage then there is nothing wrong with a state limiting it. Plus it is a STATE choice not A federal choice!

If you read through the decision, for which SnorterLuster kindly provided a link, you’ll find the court held the amendment to be unconstitutional in three ways, none of which is related to marriage per se.

First though, let’s review - the Constitution is the supreme law of the land. In those areas it covers, state law may not contradict it. Otherwise, rights are reserved to the states. Traditionally, regulation of marriage, such as whether it’s legal to marry your 14-year old half-sister, has been exclusively a matter for states. The resulting patchwork of varying state laws has been a boon to states like Nevada.

Anyway, if your state enacts an amendment which restricts the free speech rights of say, Presbyterians, or allows random strip searches without cause, then your state constitutional amendment will be unconstitutional per the US Constitution (Amendments I and IV, in this case). I’m not positive about this, but I don’t think in many cases the state supreme courts can do much about this - they have to uphold the state constitution, even if it’s wrong. Instead, it falls to federal courts to rule on whether state constitional amendments pass muster according to the federal Constitutional.

A more relevant example is the Romer case from Colorado from some years ago. A constitutional amendment was passed which prevented any future law from ever granting specific rights to gays (forgive my paraphrasing, it’s been 10 years or so since the decision). The Supreme Court ruled that the Colorado amendment violated the equal protection clause of the XIVth Amendment, making a particular class of people unequal. The ruling said this is unavoidable from time to time, but it must only be done in furthering a legitimate government interest.

Ok, now back to the case at hand…
The federal court ruled that

  1. It is essentially the same as Romer, and so violates the equal protection clause of the XIVth Amendment.
  2. It singles out a particular group for legislative punishment, and so constitutes a bill of attainder, prohibited under Article I, Section 9 of the US Constitution.
  3. By thus restricting lobbying and advocacy for particular legislative remedies, the current amendment violates the free speech rights guaranteed under the Ist Amendment.

The first two have some logic to them, if you bother to read through the tedious explanations in the decision. The third seems like a wild stretch to me, yet it is first of the three (section A) set forth in the decision. Regardless, all three points are really just the same argument. The reasoning is somewhat shaky, and the ultimate question is how closely this resembles Romer. We’ll see what the appeals court thinks in due time.

[quote=Digitonomy]A more relevant example is the Romer case from Colorado from some years ago.
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Romer was a bogus decision, and it’s use as a precedent only further muddies the waters.

Our Judicial Oligarchy

Playing Defense in Colorado

A Culture Corrupted

The SCOTUS majority in Romer overstepped their authority (which, as usual, Justice Scalia’s dissent in that case makes quite clear). Now the same sort thing is happening in yet again Nebraska.

– Mark L. Chance.

[quote=mlchance]Romer was a bogus decision
[/quote]

Well put. Why bother getting enmeshed in the dialectic? Gay activists can hire lawyers by the garbage scowl full to argue whatever absurd claim they wish to make this week . And an activist judge will sooner or later agree with them.

For 200 years nobody noticed homosexual’s constitutional right to get married was being violated.

Took a Federal judiciary packed with activist judges to notice.

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