Judge Voids Same-Sex Marriage Ban in Nebraska

NY Times ^ | May 13, 2005 | THE ASSOCIATED PRESS

[neverdem]

LINCOLN, Neb., May 12 (AP) - A federal judge on Thursday struck down Nebraska's ban on same-sex marriage, saying the measure interfered not only with the rights of gay couples but also with those of foster parents, adopted children and people in a variety of other living arrangements.

The amendment to the state's Constitution, which defined marriage as a union between a man and a woman, was passed overwhelmingly by the voters in November 2000.

The Nebraska ruling is the first in which a federal court has struck down a state ban on same-sex marriage, and conservatives in the United States Senate pointed to it as evidence of the need for a federal constitutional amendment banning same-sex marriage.

"When we debated the merits of a federal marriage amendment on the Senate floor, opponents claimed that no state laws were threatened, that no judge had ever ruled against state marriage laws," said Senator John Cornyn, Republican of Texas. He added, "After today's ruling, they can no longer make that claim."

The drive for a constitutional amendment stalled out after the last election as Senate leaders said they would await court rulings on the many state constitutional amendments that already ban same-sex marriage.

The judge in the Nebraska case, Joseph F. Bataillon of Federal District Court, said the ban "imposes significant burdens on both the expressive and intimate associational rights" of gay men and lesbians "and creates a significant barrier to the plaintiffs' right to petition or to participate in the political process."

Judge Bataillon said the ban went "far beyond merely defining marriage as between a man and a woman." He 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 went further, prohibiting same-sex couples from enjoying many of the legal protections that heterosexual couples enjoy. Gay men and lesbians who work for the state or the University of Nebraska system, for example, were banned from sharing benefits with their partners.

Nebraska has no state law against same-sex marriage, but Attorney General Jon Bruning said it was not allowed before the ban and would not be permitted now. Mr. Bruning said he would appeal the ruling.

The challenge to the marriage law was filed by the gay rights organization Lambda Legal and the Lesbian and Gay Project of the American Civil Liberties Union.

A lawyer for Lambda Legal, David Buckel, has called the ban "the most extreme anti-gay family law in the entire nation."

Massachusetts has allowed same-sex marriages since last May; Vermont has offered civil unions since 2000. The actions came after courts ruled that gay couples were being discriminated against.

Those court decisions spurred the move last year for a federal constitutional amendment to ban same-sex marriage, a move President Bush has said he supports. A subcommittee of the Senate Judiciary Committee has scheduled a May 19 hearing on the need for such an amendment.

[The Ghost of FReepers Past]

The constitution had to be changed because of the threat of judges, not legislatures. Now the judge says the constitution cannot be changed because gays need access to legislatures. What a joke. They don't petition legislatures. They sue! So it's a catch-22. You can't stop the judges with legislation OR with the constitution. The judges reign supreme and gay marriage (by whatever name) is what they want. Our masters have spoken.

So, where are the states' rights liberals now?

[lula]

Hmm... we're talking about a Federal judge, not installed by a state, but by the President and approved by the Congress. Last I heard, despite rampant (perennial) fraud in Chicago, New York, and Florida, the limited percentage of voting citizens are still able to see their will hold sway. The rest still need to wake up!!!!

[stan_sipple]

thats why federal marriage amendment is needed, to stop this nitpicking gayctivist judges from picking apart states' marriage laws,

[jude24]

If you want anyone to take you seriously, lose the insults like "gayctivist."

[Calpernia]

And my converation was asking how to get someone impeached. You jumped in in the middle and sent this off in another direction.

[stan_sipple]

Ironic this liberal activist judge's brother is a Douglas County Omaha Judge, who is republican pro-life/pro-family

[stan_sipple]

you mean like "feminazi" "sheeple"?

[jude24]

Yeah, like those.

Very few people can use them effectively; for most people, they only cheapen and coursen their argument - and detract from any legitimacy your point might have.

[JHL]

For what it's worth, here is the text from the Nebraska Constitution that was struck down:

"CI-29 Marriage; same-sex relationships not valid or recognized.

Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska."

[lula]

Ironic this liberal activist judge's brother is a Douglas County Omaha Judge, who is republican pro-life/pro-family

So sad. Some fall on fertile ground, some fall on dry hard ground.

[SkyPilot]

Judge Joseph F. Bataillon

Clinton appointee.

[P-Marlowe]

It's no accident that the oxmoronic concept of "homosexual marriage" was unheard of in the 1800's; it's about as legitimate a notion as a "square circle".

Definitions:

Circle: A plane curve everywhere equidistant from a given fixed point, the center.

Square: A plane figure having four equal sides.

Now, just for fun, Draw a square with 4 sides of infinite length and see if the result does not also fit into the definition of a circle.

[stan_sipple]

Here is judge's ruling on State's motion to dismis case from Nov 2003, anticipating his ruling today
http://www.nebar.com/pdfs/DCOpinPDFs/4-03cv3155.pdf

[goldstategop]

LOL! And the definition of marriage is NOT a compelling government interest? I would think that would trump any 14th Amendment intimate associational rights here. As for being narrowly tailored, I submit the definition offered as "a union of a man and a woman only" couldn't be any clearer. It would take a real dunderheaded liberal activist judge to find that vague - like Robert F. Bataillon. Hopefully, the federal appeals court will see all the errors in his reasoning and reverse the decision.

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

[Ol' Sparky]

Here's guessing the people of Nebraska aren't going to pleased by this and will see the need to have judges appointed to the bench that won't behave as dictators and attempt to destroy the democratic process.

Let's see which two Senators represent the state of Nebraska...Chuck Hagel and Ben Nelson. One would think if you want to remain employed as represenative of Nebraska that you better find a way to make sure judges like the ones that have been filibustered are appointed.

[stan_sipple]

Supposedly "conservative democrat" Ben Nelson "could not be reached for comment."

[frgoff]

I didn't say it was praiseworthy. I said it wasn't the same as a state judge declaring a state constitutional amendment unconstitutional.

The equivalent would be a federal judge declaring the gay marriage amendment to the U.S. Constitution unconstitutional.

[goldstategop]

As Eugene Volokh observed, Judge Bataillon's decision was NOT decided oddly enough on Lawrence as many of us thought when the ruling came out yesterday. Instead was based on a reading of Romer, then Article I, Section 8 Bill Of Attainder Clause and then the 14th Amendments various penumbras relating to privacy. Lawrence did not enter into it so as far as one can see, it didn't follow the Massachusetts Supreme Court's Goodridge precedent. The Bill of Attainder reasoning is certainly wrong since that is a restriction on Congress' powers, not on what states can do. And restricting who can marry has never been held to to be a constitutional problem before. The Romer case was about an impermissably sweeping restriction on the rights of gays, which is not the case here and as for "intimate associational rights," I'm sure that even Judge Bataillon knows no privacy rights is in and of itself, absolute. For all of these reasons, the constitutional and legal defects of the ruling are so manifest, it will be overturned by the federal appeals court. Nevertheless, it gives us scant comfort since there is an ill wind blowing through the judiciary. The age-old customs of marriage and the family are now its target.

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

[Calvinist_Dark_Lord]

We people are awake. FR even hosted a march on Wasington about them.

We don't elect the judges. What would you suggest?

That the appropriate Legislature (in this case the US Congress) either:

• disestablish the court in question, or
• Cut off funding to that particular court.

While a process of impeachment is time consuming and difficult, it is not necessary. Remove the court, and the judge, while (s)he remains a judge, has no valid legal platform from which to make rulings.

Should that particular "court" rule the Legislative action to be "unconstitutional" the Legislature in question can rightfully say "Since your 'court' does not, by statue exist, your ruling does not exist.

[trubluolyguy]

See folks, Judges otherwise known as the robe wearing dictators, don't give a shiite what you think.