Posted on 05/30/2006 12:33:27 PM PDT by DBeers
Thursday’s (May 12th) decision by a federal court to overturn Nebraska’s state constitutional marriage amendment is a landmark moment in the battle over same-sex marriage. For the first time, a federal court has taken this matter out of the hands of a state. A constitutional amendment passed with a 70 percent majority of Nebraska’s voters has been voided. There could be no clearer demonstration of the arrogance of activist judges. This should remind Republican senators of the urgent need to confirm the president’s nominees to the bench. And of course this decision clearly shows that, without a federal marriage amendment, same-sex marriage is destined to be imposed on the country by the courts.
Eugene Volokh has posted a very sharp analysis of the Nebraska case. Let’s use Volokh’s thorough analysis as a way into this issue. The most important point Volokh makes is that the logic of the Nebraska decision, if upheld, would have the effect of imposing gay marriage on the entire country. As noted, this is exactly why a federal marriage amendment is needed. Yet Volokh himself is a libertarian-leaning law professor sympathetic to same-sex marriage and opposed to a federal marriage amendment. Volokh seems to think that this obviously wrongheaded decision is destined to be reversed on appeal. So why bother with a federal amendment if this fluke of a decision is about to be overturned?
Well, this decision is not a fluke. The parts of the decision Volokh thinks are the most obviously wrongheaded simply mimic the core arguments of same-sex-marriage advocates. Volokh criticizes the decision for holding that the state has no rational interest in promoting unions among specifically heterosexual couples. Volokh doesn’t personally endorse the idea that the state ought to claim such an interest, but he insists that reasonable people can differ on the matter. Says Volokh, it’s not irrational on its face that the state might have a special interest in promoting a particular sort of relationship between men and women. Yet the distinctive thing about public debate on this issue is the claim by same-sex-marriage advocates that there are no rational grounds for opposing gay marriage — that opposition to same-sex marriage is rooted in sheer animus. The court here is simply buying into the widespread view that this is not a rational debate, but a debate between rationality and prejudice. The Goodridge decision in Massachusetts did something similar.
Volokh also criticizes the case for ignoring the distinction between the right to intimate association and the right to have the government recognize or subsidize your particular form of relationship. After all, says Volokh, the government doesn’t have to provide the benefits of marriage to single people. Volokh is right on substance, but misses the point nonetheless. A core premise of same-sex-marriage advocates is that a lack of government benefits does in fact violate their rights. The mere right to association is not enough, they say. They want benefits and state recognition for their relationships — and they insist that their entitlement to that recognition is a “right.” Even now, “single’s rights” advocates are making exactly the same argument for their own entitlement to the benefits of marriage. In fact, single’s rights groups self-consciously model their own demands on the demands of the gay marriage movement.
So I agree with Volokh that this decision is wrongheaded. It blurs key distinctions, refuses to recognize that there is a rational argument on both sides of the issue, and ultimately undercuts the rationale for state support of marriage. Yet that is exactly what the movement for same-sex marriage has been doing for years.
Volokh is “pretty sure” the Court of Appeals will reverse this decision. If it doesn’t, says Volokh, the Supreme Court will — and should — reverse. This strikes me as utterly naive. Volokh seems to think the judicial overreach in this case is obvious. But that doesn’t explain how the case got wrongly decided to begin with. The answer is clear. This judge has accepted the framing of the issue adopted by both same-sex-marriage advocates — and the entire mainstream media. This isn’t some judicial fluke. It’s evidence that the movement for same-sex marriage is successfully framing the debate — and thereby undermining the legal basis for marriage itself.
If this particular decision is reversed on appeal, that’s cold comfort. It’s all-too-obvious that the folks who think the way this judge does are not going to give way after a single reversal. They rightly believe that, over time, the courts have been shifting in their direction. It’s not just some crazy off-the-reservation judge who’s flying in the face of Volokh’s favored legal principles. It’s the entire liberal establishment. That is why, for those who oppose same-sex marriage, there is simply no alternative to a federal constitutional amendment.
-Some info AND a conservative perspective on the Nebraska decisison...
"If it doesn’t, says Volokh, the Supreme Court will — and should — reverse"
Just like the Supreme Court reversed eminent domain.
Just like the Supreme Court reversed McCain/Feingold.
We cannot trust the Supreme Court to reverse wrongheaded decisions.
This is something that the President, in the wake of what most of us hope will be an illegal immigration bill defeat for him, could seize on to help patch things up with the "base". It could also help a number of GOP congressional candidates in the November election, as well as "smoking out" a number of "moderate" and "conservative" Democrat candidates on this issue. That having been said, I'm not holding my breath.
The larger solution is for Congress to look at all the situations in which courts are substituting their personal opinions for the Constitution and duly enacted federal and state laws. Then, where there are patterns of such abuse, Congress should use its constitutional power to strip the federal courts of their jurisdiction on such issues.
This is completely legitimate and has been done several times before. And it is the first bill that I will introduce, if and when I get elected to Congress.
P.S. info. My primary is over, but because of legal and ethical problems, the incumbent may withdraw/be forced out. He is also losing in the latest poll (5/28) to the Democrat challenger. I seek to be the replacement nominee. For more information see my website. I still need your help.
Congressman Billybob
The only people who are AGAINST a Federal Marriage Amendment are the homosexuals and the judicial activists.
They know that once the FMA passes into law, their activist agenda is dead.
Remember that the next time someone opposes the FMA with specious, irrelevant arguments.
Very very true!
Thank you!
I will check out your website!
(Denny Crane: "Every one should carry a gun strapped to their waist. We need more - not less guns.")
I ask the following in all honesty. Where did a federal court find jurisdiction over a state constitution?
I'm afraid you may be right. Political expediency seems to be the only MO for those in office. I'm too young to know if it was ever otherwise, but what a refreshing experience that would be.
This article is crap. The appeals court decision will be out any day now, and Volokh will be proved correct, as he usually is.
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