"In early May, U.S. District Judge Joseph Bataillon struck down the Nebraska defense of marriage amendment because. well because he did not like it, and effectively voided the votes of 70% of Nebraskans who voted in favor of the amendment in 2000."
This would not be a problem in Nebraska (or any state) if the State Assembly would just tell the judge to go 'punt'.
The State Assembly (along with the Governor) are they ones that are in control. That is, if they would just stop pandering to the courts everytime someone sneezes the wrong way and sues that whatever it is they don't like is 'Unconstitutional'.
The Judge has the right to declare whatever he likes, but he has no power to enforce his opinion (which is all it is) on the Legislature.
He can only refer it back for regress and It's up to the Legislature to decide whether they want to rewrite it or not.
But, sadly, we aren't talking about 'constitutionalists' here, but politicians that always have an eye on that 'next election'.
For example, the GOP controlled Congress passed and President Bush signed the new bankruptcy law. The value or detriment of that new law to the public and policy aside, that’s for another post, it presents another and excellent example of the obligations imposed on courts as the third co-equal and independent branch of government. Among the many confusing provisions of the bankruptcy law is one that allows a debtor who is “sufficiently” below his state’s median income the unchallengeable right to file the bankruptcy petition.
Like with the judicial determination of what, in other instances, is a “reasonable” search, or what constitutes “due process,” or “just compensation,” it is the courts that are given the obligation to interpret what the term “sufficiently” means in both a universal sense as well in any given case before the court. Thus, much to the chagrin of the too often ignorant radio talking heads and the noisy clamor of the uninformed who think courts merely read statutory words and apply them, it should be clear (although it probably will not be accepted) that when a statutory command requires interpretation or is ambiguous, the only agency of government capable of accomplishing that important task is the judiciary.
Once Congress has passed an Act and the President has signed it into law, as the Court in Marbury v. Madison (1803) said, it becomes the sole duty of the judicial department to declare what the law is. If the law is clear, unambiguous and not open to interpretation and if it is consistent with constitutional standards, then the courts’ have no role except for application. However, as is virtually always the case, the law or agency regulation is issued containing some provision(s) that is capable of question as to its meaning. Even though there will be those fervently wishing a different outcome, the courts’ intervention is a necessary act consistent with democracy’s demand that law be both known and predictable by those affected by it.
Because a state legislative body - -or, for that matter Congress, passes an Act that becomes law, it is unalterably the exclusive obligation of the courts (and hence judges) to determine whether the law comports with the Constitution. Those who complain about the courts is nothing less than a substitute statement for saying that they disagree with the court. The answer is not to pillory the judges, the answer is to enact legislation that meets constitutional muster.