Skip to comments.Federal judge rules gay marriage ban unconstitutional (Nebraska)
Posted on 05/12/2005 1:32:13 PM PDT by jebanks
U.S. District Judge Joseph Bataillon struck down Thursday Nebraska's constitutional provision prohibiting gay marriage or civil unions.
The constitutional amendment, known as Initiative 416, passed in 2000 with 70 percent of the vote. It prevents homosexuals who work for the state or the University of Nebraska system from sharing health insurance and other benefits with their partners.
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."
Forty states have so-called "Defense of Marriage'' laws, but Nebraska's ban is the only one that explicitly prohibits same-sex couples from enjoying many of the legal protections that heterosexual couples enjoy.
Federal Amendments are very hard to get passed, but state Amendments are easier to get passed all we need are good Conservative Judges!
He isn't doing activist judges or judges, in general, any favors either. This will also play into the Senate fight over ending filibusters on President Bush's judicial nominees.
What is worse is most of these Judges tend to be GOP appointees. Many of Bush's appointees were Dems and RINOS, only a few real conservatives such as the 10 the Dems are blocking. If a SCOTUS vacancy comes up Bush better appoint a Real Conservative Judge, and not Alberto Gonzales which is Spanish for David Souter!
Unless, of course, the 70% just back down and give up. Which is the most probable outcome.
>>This guy is only making matters worse for the gays. It's going to throw kerosene on the fire. Those floozies are in trouble!!!
I really don't think so...
He is making a distinction between marriage which is a special thing reserved for heterosexual couples and civil unions that anyone should be able to join...not unlike a contract.
But it affects the morals of our country. America was founded as a Christian nation and homosexuality is immoral.
As to "democracy," neither did the founding fathers, as stated in
Article IV, Section 4,
The United States shall guarantee to every state in this union, a republican form of government,
A "republican form of government" is not a democracy.
As to the "rule of law," Alexander Hamilton states, A constitution is, in fact, and must be regarded by the judges as, a fundamental law.
No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.
You are going to be damn glad when the Muslims are the majority in this country and they wish to abolish Christianity that the Constitution consisting of Article VI, Section 3 (no religious test shall ever be required as a qualification to any office or public trust under the United States) and Amendment I (Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;) are the "RULE OF LAW."
The rats can't win elections except in the rat controlled big cities. So they use their judges to make laws.
As an EX-CA....I remember voting YES for "term limits" and Prop 187. Along with Prop. 208, and 5...all being overturned in the courts.
I dunno why anyone is surprised when we have political office holder's dominated by lawyers..that they turn to the courts..when they don't like what the peon peasants vote for...or against.
Grant them a new right!!!!
This is FreeRepublic.com, not Democratic Underground.
Madison argues "rights retained by the people" (Amendment IX) directly constrained congressional power.
Madison [is] committed to the dual strategy of limiting powers and protecting rights.
Senator Lyman, principal draftsman of both the Thirteenth Amendment and the Civil Rights Act of 1866, posed the question what rights do citizens of the United States have? He answered, They are those inherent, fundamental rights which belong to free citizens or free men, in all countries, such as the rights enumerated in this bill, and they belong to them in all the States of the Union. As examples of natural rights and inalienable rights he offered these: The right of personal security, the right of personal liberty, and the right to acquire and enjoy property.
If the founding generation that adopted the Ninth Amendment and the generation that adopted the Fourteenth Amendment were correct about natural rights, then constitutional legitimacy requires a lawmaking process that provides an assurance that the rights retained by the people, or the privileges and immunities of citizens, will not be disparaged, denied, or abridged.
We do not get our "rights" from the legislature. I am stunned that you would make such a remark.
Might be a silver lining here. Isn't Chuck Hagel from Nebraska and also one of the Senators who are on the fence as far as pushing the rules change through on the judicial fillibusters?
Nebraska has got to be the reddest of the red states. I suspect this will prompt quite a few Nebraskans to let Hagel know how they feel about this Judge's trashing of a law that they voted in and that something has to be done to put a stop to this crap.
133 Constitutional Convention explicitly assumed this power (judicial power) to reside in the judiciary. No one disputed the power of the judiciary to set aside unconstitutional laws passed by states. Nor did anyone question that federal judges would have the same power to set aside unconstitutional legislation from Congress. Federal judges had the inherent power to hold federal laws unconstitutional.
134 - judicial nullification was included within the original meaning of the judicial power. Throughout the duration of the Convention no one disputed the existence of a judicial power to nullify unconstitutional laws.
136 Without a judiciary, the injunctions of the Constitution may be disobeyed, and the positive regulations neglected or contravened.
137 James Madison Asserting the importance of judicial nullification. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.
139 In our system, absent a legislative supermajoritarian override of a presidential veto, all three branches must concur before it (a law) is constitutional. Any one branch may scuttle a law because it alone deems it unconstitutional.
No one in Congress rose to object to this assertion of judicial power.
"What checks and balances exist now to control an out-of-control judiciary run amok? Answer? None."
Congress is free to correct such judicial interpretations if it wishes.
268 That it often does not evidences Congresss all-too-common strategy of passing vaguely worded statutes so that administrative agencies or courts provide the rules of law that Congress would not.
In the event that Congress disagrees with an assessment by the Supreme Court that a particular enactment is either unnecessary or improper, and there is a strong popular support for the statute, Congress has the power to propose a constitutional amendment.
This is going to be appealed. Which court will it go to and what is the makeup of that court? Anyone know?
Law Professor Eugene Volokh gives a lengthy explanation of why this decision was wrong and predicts that it will be overturned at http://volokh.com/archives/archive_2005_05_08-2005_05_14.shtml#1115938636
I bet if you had 1000 grammarians and gave them 1000 years they would not be able to find the judge's little gem in the Constitution.
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.