Federal judge rules gay marriage ban unconstitutional (Nebraska)

U.S. District Judge Joseph Bataillon struck down Thursday Nebraska's constitutional provision prohibiting gay marriage or civil unions.

The constitutional amendment, known as Initiative 416, passed in 2000 with 70 percent of the vote. It prevents homosexuals who work for the state or the University of Nebraska system from sharing health insurance and other benefits with their partners.

A group of lesbian and gay couples sued the state of Nebraska, contending the act barred "lesbian, gay and bisexual people from using the ordinary political process to seek important legal protections that all other Nebraskans already have."

Forty states have so-called "Defense of Marriage'' laws, but Nebraska's ban is the only one that explicitly prohibits same-sex couples from enjoying many of the legal protections that heterosexual couples enjoy.

Thank you for your lengthly and cordial reply.

"That you apparently take the view that it is proper for the Courts to decided for all how the 'spirit' of the Constitution conveys rights"

I do not believe for one moment that the Courts "convey" rights.

Rights are inherent to a human beings existence.

The 9th Amendment is textually clear on what it says and means" "others (rights) retained by the people."

"Retained" is the key phrase.

Individuals or organizations file suits in courts exerting "retained rights," petitioning the court that those "retained" rights have been violated by the legislature and the executive branch, and subsequently ask for nullification of the law that violates "retained" rights.

The judiciary is thus not declaring rights. It is agreeing with the plainiffs claim of a "retained" right.

"If there is a right to privacy and abortion and gay marriage then that is for the people and their elected represenatives to decide."

If you have read Roe v. Wade then you would know that the reason "the right to privacy" is the reason for legal abortions is because the fetus has been declared a non-human until the fetus is "viable" by the Supreme Court.

That being the case, the non-human is considered "tissue," such as a kidney and thus the "right to privacy" allows a free citizen to be the final arbiter of what to do with their kidney.

Abortion is not allowed after about 6 months of pregnancy because the fetus is now considered "viable."

The "people" can fix Roe v. Wade by petitioning the Congress to declare a fetus a human being at the time of conception.

Then the fetus has a "right to privacy" as well and cannot be murdered.

Rep. Ron Paul has introduced such a bill in the House. You and me and all of the anti-abortionist should be contacting our House representatives to pass this legislation.

"...proper for judges to make these sweeping decisions is to place them on a footing clearly superior to its allegedly coequal branches, and to confer a level of power to them not intended by the Founders."

Let me let Prof. Randy E. Barnett, of Boston University, answer this queston of "Founders" intent from his book, "Restoring the Lost Constitution, A Presumption of Liberty," I highly recommend that you read this book.

132 - Far more evidence exists to suggest that the original public meaning of the term “judicial power” included the power to nullify unconstitutional legislation.

133 – Constitutional Convention explicitly assumed this power (judicial power) to reside in the judiciary. No one disputed the power of the judiciary to set aside unconstitutional laws passed by states. Nor did anyone question that federal judges would have the same power to set aside unconstitutional legislation from Congress. Federal judges had the inherent power to hold federal laws unconstitutional.

134 - …judicial nullification was included within the original meaning of the “judicial power.” Throughout the duration of the Convention no one disputed the existence of a judicial power to nullify unconstitutional laws.

136 – Without a judiciary, the injunctions of the Constitution may be disobeyed, and the positive regulations neglected or contravened.

137 – James Madison –Asserting the importance of judicial nullification. “If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”

No one in Congress rose to object to this assertion of “judicial power.”

139 – In our system, absent a legislative supermajoritarian override of a presidential veto, all three branches must concur before it (a law) is constitutional. Any one branch may scuttle a law because it alone deems it unconstitutional.

140 – These provisions (Article III, Section 2 and Article VI) support the following construction: Courts are empowered under Article III to decide “all cases…rising under this Constitution and Laws of the United States.” When deciding such a case, a court is required to apply the laws that are applicable to the case at hand. In cases where both the Constitution and a statute apply and the latter is in conflict with the former, the court must decide which is a superior authority. The Supremacy Clause suggests that the Constitution should take precedence over a statute. Therefore, when the court finds that a statute is in conflict with the Constitution, it is bound to obey the Constitution and disregard the statute.

141 - Alexander Hamilton: “A constitution is, in fact, and must be regarded by the judges as, a fundamental law.

“No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.” 142 - “It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority.”

143 – The modern power of judicial review is not limited to refusing to enforce an unconstitutional law being applied to an individual – a power that is warranted by the original meaning of the “judicial power.” Modern judicial review also includes a power to command or order other branches of the government to follow the judiciary’s interpretation of the Constitution – a power that is sometimes called “judicial supremacy.”

A power of nullification is not one of supremacy, but one of judicial equality, (with the two other branches of government.)

Judicial negation is not legislation.

Only if the Congress enacts a measure because enough of its members believe it to be constitutional (or do not care) and the president signs the bill believing it is constitutional (or does not care) may the Court have the opportunity to express its opinion on its constitutionality.

144 – The court’s power to negate unconstitutional legislation renders it equal, not superior, to the other branches. 147 – Is Congress entitled to a benefit of the doubt when it claims the existence of a power? Or does the benefit of the doubt go to the citizen who claims that the restriction on his or her liberty was beyond the proper power of the legislature that enacted it?

It is absolutely clear from your impassioned rant that you have no understanding of the manner in which our judiciary works. Certain rights, some of which are enumerated in the text of the US Constitution, and others which have been derived from interpretations of the US Constitution, are considered to be fundamental and **cannot** be stripped from Americans citizens merely because the majority of the American people wish to do so. I should have thought that this would be something that you would understand before throwing a hissy fit. These rights include the right to intimate and expressive association (have you read the First Amendment, or any of the long line of US Supreme Court cases that deal with interpretations of this Amendment?), the right to petition the legislature for redress of grievances, and the right of all persons to enjoy the equal protection of the laws. Any state constitutional amendment that classifies one group of people and declares that they, as a group, cannot avail themselves of the same right to petition their legislature for redress of grievances as is enjoyed by all other groups of people, is unconstitutional on its face (see Romer v. Evans, 517 U.S. 620). Your comments also indicate that the district court was absolutely correct when it found, as a matter of law, that Section 29 of the Nebraska constitution was enacted as the direct result of animus directed towards the group impacted by the amendment. Clearly, you harbor animus towards gay people and wish to inscribe this animus into state constitutional law.

Let me ask you this: Using your own logic, were the overwhelming majority of the citizens of Nebraska to amend their constitution to permit the summary execution of people determined to be gay, would this be acceptable? I am not being facetious -- I want to know your answer to this question. Please be honest -- tell us what you think should be done with, or to, gay people.

You most certainly were mistaken. A state constitution can be modified to grant to its citizens rights that are not granted to them under the US Constitution, but it cannot be modified to take away rights that are guaranteed to them under the US Constitution. The US Constitution sets a floor, but not a ceiling, to the rights that a state can bestow upon its citizens.

You are probably thinking of a related issue. If a state supreme court premises its logic on the state constitution alone, without reference to the US Constitution, then the decision of the state court is binding and cannot be reviewed by the US Supreme Court. However, this is subject to the above qualification. For example, if a state constitution is interpreted by a state supreme court to grant to the citizens of that state a right to privacy that includes the right to abortion on demand, and the state supreme court does not invoke US Constitutional analysis, then that decision cannot be reviewed by the US Supreme Court. However, if a state constitution is amended in such a way as to deprive citizens of that state the rights that they are guaranteed by the US Constitution, then the state constitutional amendment can be challenged in federal court, as happened in this case. The federal judge found that Section 29 of the Nebraska Constitution violated the First and Fourteenth Amendment rights of gay Nebraskans, and (impeccably correctly) enjoined the state from enforcing the amendment.

When that vote restructures the political process in such a manner as to "keep the outs out", and "keep the ins in." In other words, when that vote results in a restructuring of the democratic process that forces certain named groups to surmount obstacles that the rest of the populace does not have to face. That is exactly what happened in Colorado, and what has again happened in Nebraska. The state conceded that the amendment could be construed to invalidate co-tenant agreements (leases) between gay couples, could be construed to prevent gay couples from naming each member in the other member's will, etc. This amendment was clearly about a great deal more than marriage. It was about spitting into the faces of gay Nebraskans, and the district court saw through this from the start. I refer you to the work of James Hart Ely ("Democracy and Discontent") in which this scholar describes the manner in which a democracy can restructure itself so as to make it more difficult for specific groups of citizens to seek redress than for all other citizens. He refers to this as a "malfunction" of the democracy, and his work is highly regarded as being authoritative. The US Supreme Court also noted that this "malfunction" could occur and raised the issue of judicial review in the case of democratic "malfunctions" in Footnote 4 of United States v. Carolene Products Co., 304 U.S. 144 (1938), said footnote reading as follows:

"It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378; Herndon v. Lowry, 301 U.S. 242, and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365."

In short, the district court saw that the amendment imposed a special disability on gay Nebraskans, and consistent with Romer v. Evans, 517 U.S. 620 and Lawrence v. Texas, 53 U.S. 558 (2003).

You may not like it, but the fact remains that the US Supreme Court lifted from me an impediment that classified me as an unconvicted felon in several states prior to the handing down of Lawrence. It indicated most strongly that it was waiting for the correct opportunity to accomplish this in Romer v. Evans, 517 U.S. 620 (1996).

All of you who are clamoring to abolish judicial review -- do you really think that you can pass a US Constitutional Amendment to do this? If so, you are in deep denial. At the end of the day, gay Americans no longer have to live with a badge of shame pinned to us. You have lost. Now grow up and accept this fact with a modicum of good grace.

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