U.S. Judge Rejects Nebraska Gay-Marriage Ban

AP ^ | 5/12/05 | Kevin O'Hanlon

[Crackingham]

A federal judge Thursday struck down Nebraska's ban on gay marriage, saying the measure interferes not only with the rights of gay couples but also with those of foster parents, adopted children and people in a host of other living arrangements. The constitutional amendment, which defined marriage as a union between a man and a woman, was passed overwhelmingly by the voters in November 2000.

U.S. District Judge Joseph Bataillon said the ban "imposes significant burdens on both the expressive and intimate associational rights" of gays "and creates a significant barrier to the plaintiffs' right to petition or to participate in the political process."

Bataillon said the ban beyond "goes far beyond merely defining marriage as between a man and a woman."

The judge said the "broad proscriptions could also interfere with or prevent arrangements between potential adoptive or foster parents and children, related persons living together, and people sharing custody of children as well as gay individuals."

Forty states have laws barring same-sex marriages, but Nebraska's ban is the only one that prevented homosexuals who work for the state or its university system from sharing health insurance and other benefits with their partners.

[goldstategop]

Of course. "Rights" invented out whole cloth. For the record the judge is dead wrong about homosexuals' rights being abridged or denied. All the amendment simply said was same sex marriage or civil unions would not have legal status in Nebraska law. It did not prevent same sex couples from living together or investing or saving for the future. DUH.

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

[goldstategop]

Exactly. The aim is to prevent the people from taking a social direction liberals wish to block.

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

[Cboldt]

This is why we need a US Constitutional Amendment. A sad state of affairs.

Language is a flexible thing. A Constitutional amendment only stalls the process while a new label is developed, and maybe until about one generation passes.

Campaign Finance Reform law prohibits some organizations from buying air time for politically-motivated advocay ads, yet SCOTUS ruled no infringement on the 1st Amendment.

Or slightly more arcane and less weighty, the VI Amendment recites "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ..." but see Duncan v. Louisiana, 391 US 145 (1968) ,which holds there is no right to a jury trial if the maximum penalty is less than 6 months imprisonment.

It is doubtless true that there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision and should not be subject to the Fourteenth Amendment jury trial requirement here applied to the States. Crimes carrying possible penalties up to six months do not require a jury trial if they otherwise qualify as petty offenses.

[goldstategop]

Don't forget international jurisprudence, increasingly adopted by U.S Courts, that's tilted to the Left. Expect rulings from liberal judges sanctioning every wish list item of the liberal agenda by means of interpreting constitutional law as a "living tree" that grows new branches of law to fit a given era's new needs.

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

[AuH2ORepublican]

"This is why we need a US Constitutional Amendment."

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Absolutely. Anyone who still thinks it isn't necessary is sticking his head in the sand.

[planekT]

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

Hey, that's great. Thanks Judge. By the way, you're retired.

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

From the article:

"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".

---

What we need to do does not require an amendment to the Constituion. It requires our Congress to act as they once did when faced with a hostile judiciary. No messy time consuming impeachments are needed. Just get rid of a few of them, starting with the two clowns at the Ninth Circus (pedge of allegiance case) an maybe a few dozen more, like this Clintoon appointee.

If that doesn't get their attention, then liquidate the positions of a bunch more and keep it up until they either get the message or are all filling out applications at McDonalds.

planekT

[Always Right]

Absolutely. Anyone who still thinks it isn't necessary is sticking his head in the sand.

Yep, you look pretty stupid when you call it a state issue while the federal courts are turning over the state's laws.

[Always Right]

Campaign Finance Reform law prohibits some organizations from buying air time for politically-motivated advocay ads, yet SCOTUS ruled no infringement on the 1st Amendment.

I am still shocked over that ruling. I figured old ACLUer Ginsburg was a sure thing to come over to the right side. Most surpised I've ever been over a ruling.

[madprof98]

Neither Google nor Yahoo News lists this as a top story. I suspect it will be back-paged (and left unmentioned on network news) in the hope that nobody will notice a federal judge has put down the people again.

[XR7]

[epow]

And the libs wonder why there needs to be a constitutional amendment. All the supporters of it said that this is exactly what was going to happen.

Right you are. And this is why we MUST have an amendment to the U.S. Constitution to stop this kind of judicial tyranny. An amendment to a state constitution can be overruled by a federal judge, but not an amendment to the U.S. Constitution.

The last election proved beyond any doubt that a large majority of the people want a ban on same sex marriage, and we all know an amendment to that effect would easily be ratified by the states if only Congress would pass it. The problem is that it takes a 2/3 majority to pass a Constitutional amendment, and there are 45 Democrat Senators and probably at least 3 Republicans who will vote against it.

[inquest]

Actually all we really need is an act of Congress taking away the jurisdiction of courts to hear these kinds of cases. Congress does have that power, and it would only require a simple majority in both houses, rather than the arduous process of getting a constitutional amendment passed.

[Celtman]

Actually what we need are the impeachments of a few judges.  But, fat chance.

[inquest]

Removal of jurisdiction will do the job.

[JCEccles]

Actually all we really need is an act of Congress taking away the jurisdiction of courts to hear these kinds of cases.

And some liberal court would find the act unconstitutional. Mind-boggling, legally preposterous, but entirely possible.

I am reminded of the scene in 2001 a Space Odyssey when an astronaut orders supercomputer HAL to open the doors to the space station: "I'm sorry Dave, I'm afraid I can't do that."

[inquest]

They'd have a whole new fight on their hands if they tried that. Making an erroneous ruling is one thing, but trying to assume jurisdiction one does not have can mean pushing one's luck just a little too far. It would be like me trying to assert jurisdiction over a case.

[John Locke]

Sic semper tyrannis!

Yes, I'm serious. To H*ll with recall, impeachment, or slapping with a wet noodle. Hang the bastards. Hang 'em high.

[queenkathy]

Can you give a verse for that?

[AuH2ORepublican]

"Actually all we really need is an act of Congress taking away the jurisdiction of courts to hear these kinds of cases."

---

I have studied this issue, and it is not altogether clear whether Congress can take something away from the Supreme Court's appellate jurisdiction without having another federal court be available to hear the case either in original or appellate jurisdiction. Article III, Section 1 says that the federal judicial power shall extend to all cases arising under federal laws or the U.S. Constitution, and thus a court may conclude that Congress violated Article III, Section 1 if it took the power to review "arising under" cases from all federal courts.

And in any event, a state supreme court could also declare a state constitutional provision to be in violation of the U.S. Constitution, and if no federal court had appellate jurisdiction that state court decision would be the final word. Thus, without a clear federal constitutional amendment protecting the institution of marriage, we'll be at the mercy of liberal judges no matter what we do.

[JCEccles]

I have never known a liberal court to let a congressional act stand in its way on anything in the court's pursuit of the "perfecting" of society. The liberal bench views itself as life-tenured superlegislature, a house of lords accountable to no person, government, or claim save its own liberal view of how society ought to ordered and run.

I agree it would an extremely risky move, one that would ignite broadbased demonstrations, violence, and disorder.