Federal judge rules gay marriage ban unconstitutional (Nebraska)

Omaha World Herald ^ | 5/12/05 | Todd Cooper

[jebanks]

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.

[Unam Sanctam]

But of course we shouldn't amend the US constitution to prevent judges from doing this...

[Loud Mime]

This reminds me of something that happened in Colorado with Proposition 2, or similar.....my memory is foggy.

The nature of the argument was that you could allow somebody to ask for something, then turn them down; but, you could not prohibit their asking for it in the first place. Prohibiting the request is unconstitutional; denying it isn't.

It was tricky. So are those who want to change the dominant culture of the US.

[Navy Patriot]

Question: If I was an employee of the State of Nebraska (a guy can dream can't he) could I share benefits with someone who was just a good friend?

Short answer, Yes.

Also, you may have hit upon the method to turn this around.

If all single state and federal employees would find a friend with whopping health problems and "marry" them the government and business would have to either remove spouses and children from employee health plans or remove gays from same by restricting gay "marriage".

[december12]

Does anyone know which Constitution this judge said was violated -- Nebraska's or the US Constitution? Either way, I'd expect him to be overruled by a higher federal court.

[muawiyah]

Reading through all sorts of news on this case (some even from gay periodicals) it doesn't look as though the judge has done anything particularly noteworthy to assist gays. He is not exciting their little hearts.

What happened is that Nebraska passed a law that had more in it than the usual "no gay marriage" stuff. That additional material gave the plaintiffs (the ACLU as usual, and in this case them alone since NO ONE HAS COMPLAINED OF BEING HARMED) a hook.

In the future it would be a good idea to leave the extra stuff out.

This whole thing, though, demonstrates that we need a federal constitutional amendment to deal with the issue.

[churchillbuff]

Betcha he's a Clinton Nominee!"""

Maybe he is, but don't be surprised if a Republican president put him in. A lot of liberal judges were appointed by Nixon, Ford and Bush Sr.

[Radioactive]

I'm buying stock in tar and feathers

[goldstategop]

Hamilton said no such thing. The Framers assured the public they would not have to fear from judicial despotism because the courts were dependent on the public purse. Little did they see the courts would gain through Marbury the right to literally make the law as they saw fit. And judicial review has allowed judges to express contempt for the will of the people by reading into the law their own personal or ideological preferences. The answer is not to appoint judges but rather to restore the final say about what the law means to the elected representatives of the people. That can be brought about only through abolishing judicial review.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[The Spirit Of Allegiance]

IMPEACHMENT TIME OUTRAGE!

Yes, we need a chilling effect on these #$%^&*( robed anarchists!

Chilling down to room temperature, with a hangman's noose for TREASON.

[tahiti]

I can tell by your post you are not going to like what I have posted below, but the bottom line is the "federal" judge ruled correctly, constitutionally.

Is that not what we want the judges to do?

Article VI

2. This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the CONSTITUTION OR LAWS OF ANY STATE to the contrary notwithstanding.

Lawrence v. Texas has established that "gayness" is a right "retained by the people," as enumerated in Amendment IX.

A "federal" constitutional amendment is going to be needed to accomplish your goal of banning gay marriage.

Why wouldn't a "conservative," who believes in the principle of limited, delegated power given from the people to a government, not support that principle by insisting our government has no constitutional, enumerated power to interfere in the sexual preference or partnership decisions of fellow citizens.

Most "conservatives" would support the proposition that the decision to be a homosexual, as well as heterosexual, is in fact a decision, not genetic.

With that being the case, why is a human not free to choose their sexual preference without negative consequences from their, limited power government?

[goldstategop]

Of course we should. If judges can't declare laws unconstitutional, then minorities will have to convince a majority in an elected legislature to grant them a new right. What this judge did was an unbelievable display of arrogance. But that's in line with how liberals see what judges are supposed to do. Make sure people accept the Left's interpretation of social and political policy as a fait accompli.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[omni-scientist]

I could buy this ruling if in fact their was a legal right that was being denied to homosexuals. But to say that a benefit, say health insurance, was a protection for which an equal right must be extended to all (no, just state employees) is a stretch way too far.

Someone can only come to such a contorted conclusion if they are pushing an agenda, namely to strike down the entire law, not just the provision.

[Borges]

Hamilton said no such thing.

Here's a direct quote:

" Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."

Congress already has the power of the purse to shut down some of these Appeals courts. They just don't have the fortitude to do so. However checks and balances insists that the Judicial Branch guard our Constitution from the whims of the electorate at any given time which Congress reflects. And all Judges rule based on their preferences and biases. The answer is to appoint Judges who's preferences and biases fit our own.

[goldstategop]

The problem isn't judges; the problem is they abuse their power. And the source of that abuse in judicial review needs to be fixed by ending it. We do not trust any elected official with unchecked powers. For the same reason, we ought not to tolerate it in the judiciary if we are to remain a free society.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[goldstategop]

Why are the people not free to preserve their understanding of family in a state's highest law? Why is that unconstitutional? The Left does not believe in democracy and the rule of law and this was pointedly demonstrated today in Judge Bataillon's ruling an amendment to the Nebraska State Constitution "unconstitutional." Apparently, 70% of the state's residents are homophobes and bigots. Their views be damned.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[planekT]

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

http://www.freerepublic.com/focus/f-news/1378491/posts


In 1802, the Jeffersonians, faced with courts deliberately packed by the Federalists, passed the Judiciary Act of 1802, which abolished over half of all the sitting federal circuit judges. The act didn’t impeach them; it simply said their jobs didn’t exist. They wouldn’t be paid, so they shouldn’t bother to show up. The judges were deeply offended. They promptly went to court, and the remaining federal judges essentially said, if we overrule the Congress, they’re going to abolish our jobs.

[Maceman]

Leaving Legislative bodies in charge of the Constitution is like leaving wolves in charge of the Hen house. It's a document that lists the sort of laws they are not allowed to pass. The Judicial branch is there to make sure they don't. The answer is to appoint good judges.

Utter rubbish. The practical result of what you say is that every law passed by the legislators and voters is subject to the approval of 5 judges.

Our government is NOT supposed to depend solely on whether we have "good" people in charge. We need protection from tyranny most of all when "good" people are not in charge.

Ultimately, any law is only as good as the society that creates it. And certainly We the People are capable of creating bad laws through our legislature.

But if there has to be an ultimate authority, I would much rather it be the people's representatives than 5 so-called good judges, who in essence can amend the Constitution at will without contradiction.

If the Supreme Court were to rule that the Electoral College is an anachronism that violates the "one man/one vote" principle, based on "evolving international law and opinion," would we just have to accept that? Do you think such a scenario is impossible, given what we have heard from our sitting Supreme Court judges in recent years?

If we are to go to Hell with bad laws, at least let them be the laws made by "We the People" and not "We the Judges."

Personally, I would like to see a Constitional amendment stipulating that any Supreme court ruling can be overturned by a 2/3 vote of both houses of Congress, plus requiring the president's signature.

Such a remedy against judicial tyranny would be the only way to protect us from the capricious rule of non-"good" judges.

We have to have a system of checks and balances. What checks and balances exist now to control an out-of-control judiciary run amok? Answer? None.

And if there is to be an "ultimate" human authority on our laws, certainly what I have proposed, or something very like it, ought to be it.