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To: jebanks
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."

Since when is a vote of the people not considered the "ordinary political process?"

37 posted on 05/12/2005 1:48:45 PM PDT by PeoplesRepublicOfWashington (Re-elect Dino Rossi in 2005!)
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To: PeoplesRepublicOfWashington

When that vote restructures the political process in such a manner as to "keep the outs out", and "keep the ins in." In other words, when that vote results in a restructuring of the democratic process that forces certain named groups to surmount obstacles that the rest of the populace does not have to face. That is exactly what happened in Colorado, and what has again happened in Nebraska. The state conceded that the amendment could be construed to invalidate co-tenant agreements (leases) between gay couples, could be construed to prevent gay couples from naming each member in the other member's will, etc. This amendment was clearly about a great deal more than marriage. It was about spitting into the faces of gay Nebraskans, and the district court saw through this from the start. I refer you to the work of James Hart Ely ("Democracy and Discontent") in which this scholar describes the manner in which a democracy can restructure itself so as to make it more difficult for specific groups of citizens to seek redress than for all other citizens. He refers to this as a "malfunction" of the democracy, and his work is highly regarded as being authoritative. The US Supreme Court also noted that this "malfunction" could occur and raised the issue of judicial review in the case of democratic "malfunctions" in Footnote 4 of United States v. Carolene Products Co., 304 U.S. 144 (1938), said footnote reading as follows:

"It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378; Herndon v. Lowry, 301 U.S. 242, and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365."

In short, the district court saw that the amendment imposed a special disability on gay Nebraskans, and consistent with Romer v. Evans, 517 U.S. 620 and Lawrence v. Texas, 53 U.S. 558 (2003).

You may not like it, but the fact remains that the US Supreme Court lifted from me an impediment that classified me as an unconvicted felon in several states prior to the handing down of Lawrence. It indicated most strongly that it was waiting for the correct opportunity to accomplish this in Romer v. Evans, 517 U.S. 620 (1996).

All of you who are clamoring to abolish judicial review -- do you really think that you can pass a US Constitutional Amendment to do this? If so, you are in deep denial. At the end of the day, gay Americans no longer have to live with a badge of shame pinned to us. You have lost. Now grow up and accept this fact with a modicum of good grace.


187 posted on 05/23/2005 10:34:55 AM PDT by PhilipChandler (Fundamental rights cannot be voted away......)
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