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Federal judge rules gay marriage ban unconstitutional (Nebraska)
Omaha World Herald ^ | 5/12/05 | Todd Cooper

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.


TOPICS: News/Current Events; US: Nebraska
KEYWORDS: cary; clintonlegacy; homosexualagenda; josephbataillon; judicialactivism; judiciary; marriage; marriageamendment; nebraska; ruling
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To: Maceman

It only takes a majority of both houses and the president to declare an act out of the jurisdiction of the court. The constitution is extraordinarily clear on this. Of course the emanations and penumbras may say something different, not to mention international law.


101 posted on 05/12/2005 2:54:08 PM PDT by johnb838 (Free Republicans... To Arms!)
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To: JoeV1

Who knows what you may have read but ignorance of the constitution is rampant. Of course a state constitutional amendment can be challenged. You think NY could pass a law making slavery legal again?

So Yes you are mistaken and Yes it can be appealed to USSC and likely will be.


102 posted on 05/12/2005 2:54:25 PM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: johnb838
That's why the ACLU is jubilant about today's ruling out of Nebraska. To them, its just a matter of time before all the Christian homophobes and fag haters are put in their place. And they have plenty of allies in the judiciary to assist them towards this endeavor.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
103 posted on 05/12/2005 2:54:34 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: Borges

They will say it meant something other than what it plainly states.


104 posted on 05/12/2005 2:56:04 PM PDT by johnb838 (Free Republicans... To Arms!)
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To: justshutupandtakeit
I don't see the point of the distinction. If you like living under rules made up by liberals you can't change, then by all means, accept judicial review for what is in that regard. Don't expect the rest of us to just sit there and take more of it.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
105 posted on 05/12/2005 2:56:48 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: goldstategop

Judicial review was assumed by the founders and Hamilton, for one, had been involved in one of the major cases of judicial review by a local court in NY, Rutgers v. Weddington. It would be impossible to have a Law of the Land without jr.


106 posted on 05/12/2005 2:58:12 PM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: justshutupandtakeit

Thanks.


107 posted on 05/12/2005 3:00:01 PM PDT by JoeV1 (Democrat Party-The unlawful and corrupt leading the blind and uneducated)
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To: goldstategop

The Founders were very careful to ensure that the Law was NOT decided by popularity contests and direct votes of the people. They were completely opposed to Democracy (a negative term to them) precisely because judges should not rule based upon populatity. This was why they mandated lifetime appointment for federal judges and called for judicial independence.


108 posted on 05/12/2005 3:00:49 PM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: wk4bush2004

This is not an impeachable offense.


109 posted on 05/12/2005 3:01:30 PM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: jebanks
Gee, I sort of remember John Kerry, John Edwards, Hillary Clinton, Ted Kennedy, and all the other "more enlightened" philosoophers kings reassuring all of us last Fall that no Amendment to the United States Constitution banning same-sex marriages was necessary.

As I recall, they said it would be just "cluttering up" the Constitution.

They said is was a mere "political stunt", if I recall correctly.

Guess the judge who ruled in the Nebraska case proved them all wrong.

110 posted on 05/12/2005 3:02:04 PM PDT by chs68
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To: justshutupandtakeit
That was to limit the powers of the federal government vs. the states. The Framers wanted to ensure the elected branches of government could not assume more power than the Constitution granted them. This was the original intent of judicial review. Now, if that's all it was, no one would now seek to get rid of it. Since that time, its been changed and disfigured into an instrument of liberal supremacy over the interests of society. Since liberals can't win elections at the ballot box, they rely increasingly on judges to muscle through their agenda for them. Judicial review is then, no longer about limiting government power but about ensuring liberal ideology is victorious in the law even when its rejected by the voters. That's why its got to go.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
111 posted on 05/12/2005 3:03:12 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: justshutupandtakeit
Thanks for your rationality on this issue. Part of me understands the emotional overreaction of many when it comes to these matters but it certainly isn't anymore becoming.
112 posted on 05/12/2005 3:04:06 PM PDT by Borges
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To: Borges

Marshall's reasoning was always based upon Hamilton. He said that compared to Hamilton's judicial understanding Marshall's was "like a taper to the sun." It is unfortunate that H could not accept a nomination to the USSC because of his financial needs (he had 8 children.)


113 posted on 05/12/2005 3:04:16 PM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: justshutupandtakeit
No one says judges should not rule objectively. But they can't do that when they are captives of liberal interest groups. These judges have no accountability and that's why lifetime tenure and judicial review have to be revisited.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
114 posted on 05/12/2005 3:05:44 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: justshutupandtakeit

But he undermined the will of the people.


115 posted on 05/12/2005 3:05:57 PM PDT by wk4bush2004
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To: Borges
Do you see me overreacting emotionally? I replied with facts, logic and good datum. Of course there's also an element of righteous anger. If you were one of the 70% in Nebraska, how does it feel to have ONE judge tell you that your views are outdated, reactionary, and unenlightened? I don't hate gays and lesbians; I just happen to think their lifestyle is NOT good public policy for the survival of our nation.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
116 posted on 05/12/2005 3:09:17 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: wk4bush2004

Violating the 'Will of the People' is an impeachable offense in communist dictatorships not Constitutional Republics.


117 posted on 05/12/2005 3:09:19 PM PDT by Borges
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To: goldstategop

I expect the polygamists to get a test case up very soon. Very soon. I mean, muzzies have rights too, and if the homos can marry, why can't a good muzzie man of means have up to four wives as prescribed by his holy book? It's not fair, and not right, if you're going to have homo-marriage.


118 posted on 05/12/2005 3:09:34 PM PDT by johnb838 (Free Republicans... To Arms!)
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To: goldstategop

I wasn't so much reffering to you as those who called for immediate impeachment and or lynching. There was already a post deleted from this thread for that reason.


119 posted on 05/12/2005 3:10:01 PM PDT by Borges
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To: Borges

But we can't allow these judges to go rampant.


120 posted on 05/12/2005 3:10:23 PM PDT by wk4bush2004
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To: wk4bush2004
Of course if liberals approved of traditional marriage, this same judge would have found plenty of reasons to uphold Nebraska's constitutional amendment. I guess it all depends on what side of the fence you're on.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
121 posted on 05/12/2005 3:11:10 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: johnb838

Bookmarked.


122 posted on 05/12/2005 3:12:19 PM PDT by EternalVigilance ("We, the people, are the...masters of...the courts..." -Abraham Lincoln)
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To: justshutupandtakeit
"Constitutional law is ONLY possible with judicial review. You apparently confuse Democracy with a Republic."

Well said. Are you a "student" of Prof. Randy Barnett?

123 posted on 05/12/2005 3:12:19 PM PDT by tahiti
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To: goldstategop

Yeah, let Congress and the President decide what is constitutional. And if they ever disagree, they can flip a coin. That's fair and makes sense too.


124 posted on 05/12/2005 3:12:24 PM PDT by atrocitor
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To: johnb838
Good point. When you define marriage out of existence, what's the point of preserving marriage for future generations? Its not one I expect an idiot liberal judge with an axe to grind to appreciate.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
125 posted on 05/12/2005 3:13:24 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: goldstategop

Clinton really, REALLY screwed us on the judges. It gets worse every day. Clintonian sleeper cells.


126 posted on 05/12/2005 3:14:54 PM PDT by johnb838 (Free Republicans... To Arms!)
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To: atrocitor
Why not? If they do get it wrong, vote 'em out. Judges flip a coin and if lands the wrong way, we can't exactly overrule them except through a time-consuming process. And by then, the damage is done.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
127 posted on 05/12/2005 3:15:30 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: jebanks

How can a constitutional provision be unconstitutional? Unless is was an amendment to the state constitution that somehow violated the federal constitution, or that contradicts some other section of the existing state document. And if any of those scenarios are true, then exactly what provision did this violate? Was this invalidated on 14th Amendment "equal protection" grounds? Did a new judge find a new "penumbra" for us to deal with? What makes this unconstitutional?????


128 posted on 05/12/2005 3:16:24 PM PDT by IronJack
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To: jebanks

Uh, since when do judges of any kind have authority over a state's constitutional amendment??>


129 posted on 05/12/2005 3:17:43 PM PDT by montag813
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To: goldstategop

Exactly. What were the founding fathers thinking when they came up with this third branch thing.


130 posted on 05/12/2005 3:17:59 PM PDT by atrocitor
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To: Navy Patriot
If all single state and federal employees would find a friend with whopping health problems and "marry" them the government and business would have to either remove spouses and children from employee health plans or remove gays from same by restricting gay "marriage"

A better attack would be for brother-sister, father-daughter, polygamist (easier to do) to line up and ask why they are being denied the same "rights" as gays. If I was single, I swear I would get a group together and petition the hell out of Mass. courts.

131 posted on 05/12/2005 3:20:52 PM PDT by freedumb2003 (First you get the sugar, then you get the power, then you get the women (HJ Simpson))
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To: IronJack
I think its the 14th Amendment and Roe, Casey, and Lawrence. You know, equal protection of the laws and the relevant privacy and mystery of life penumbras. Typical liberal legal reasoning. As I said, if homosexual behavior is legal, then you can't ban gay and lesbian couples from getting married. Bastard decisions but then again Sen. Santorum observed this was exactly how it would turn out. No one should be shocked.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
132 posted on 05/12/2005 3:23:04 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: goldstategop

>>Do you see me overreacting emotionally? I replied with facts, logic and good datum. Of course there's also an element of righteous anger. If you were one of the 70% in Nebraska, how does it feel to have ONE judge tell you that your views are outdated, reactionary, and unenlightened? I don't hate gays and lesbians; I just happen to think their lifestyle is NOT good public policy for the survival of our nation.<<

It's an emotional issue -it natural to feel emotion...

Here's an attempt to be rational.

1. Why does the state recognize marriage at all? Because society has found it the best way raise children.

2. So what about gay marriage? Just because they are adults and have the right to interact how they choose doesn't mean the state has an obligation treat their union the same since society has not found gay relationships to be the best way to raise children.

3. What about civil unions? If people are going to live in non-traditional families it is societies best interest to all stability and protection so they don't become a burden on society. This could apply to unmarried hetero couples as well - it's not a gay-only issue. If they are going to be responsible for kids in spite of being non-traditional the kids should have as stable of a household as possible.

4. What if I don't want to endorse the gay lifestyle? With civil unions it's not about endorsements or special rights - it's equal protection as specified in the constitution. You don't have to like someone or approve of them to recognize that the constitution guarantees them equal protection. Older people who want to co-habitate without a marriage could also benefit.

So, I think the court did the right thing. And I know they can't consider this but it's also the Christian thing to do to give the opportunity of equal protection to everybody, even if you don't like the way they live.


133 posted on 05/12/2005 3:24:03 PM PDT by paul_fromatlanta
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To: EternalVigilance

Yeah, I think polygamy is a much better example to use in an argument about what Lawrence will lead to than bestiality, because bestiality is ludicrous, polygamy is right around the corner. Along with continued downward pressure on age of consent.


134 posted on 05/12/2005 3:24:20 PM PDT by johnb838 (Free Republicans... To Arms!)
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To: jebanks

If I were the Nebraska gov, I'd tell that judge to stick it.


135 posted on 05/12/2005 3:25:43 PM PDT by shellshocked (They're undocumented Border Patrol agents, not vigilantes.)
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To: paul_fromatlanta

Then I oppose marriage and I think it should be abolished. I propose an Abolition of Marriage Amendment. If it is going to include steers and queers, then there is no reason for a single fellow like me to subsidize it with my tax dollars. I grudgingly am ok with it between a man and a woman because I think it is good for society, but if society is going to champion something that I believe will contribute to its downfall, then lets get rid of it all together.


136 posted on 05/12/2005 3:27:59 PM PDT by johnb838 (Free Republicans... To Arms!)
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To: goldstategop
Expect the SCOTUS to invalidate ALL state constitutional bans on gay marriage.

This will happen ONLY if conservatives lose the majority on the Supreme Court. That's why Dems are going nuts over the possiblity of the GOP eliminating their ability to filibuster judge nominees, keeping them from getting a vote.

This is a defining time in our history and make no mistake, God is watching......

137 posted on 05/12/2005 3:28:21 PM PDT by demkicker
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To: johnb838

>>Then I oppose marriage and I think it should be abolished. I propose an Abolition of Marriage Amendment. If it is going to include steers and queers, then there is no reason for a single fellow like me to subsidize it with my tax dollars. I grudgingly am ok with it between a man and a woman because I think it is good for society, but if society is going to champion something that I believe will contribute to its downfall, then lets get rid of it all together<<

All the state can do is decide what official recognition to give to marriage..people would still get married no matter what. I just don't see why we should not have something other than marriage for people who want to form a household together.


138 posted on 05/12/2005 3:30:56 PM PDT by paul_fromatlanta
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To: kcvl
U.S. District Judge Joseph Bataillon issued a midnight order temporarily restraining the U.S. Department of Agriculture from shutting down Nebraska Beef Company in Omaha for alleged violation of meat safety rules.

Nebraska Beef Company, a Clinton campaign donor?

139 posted on 05/12/2005 3:37:11 PM PDT by RJL
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To: paul_fromatlanta

YEah, I think it should be a straight up partnership, almost like a business partnership. But no federal tax breaks. You can get a break if there are minor childern, but nothing just for being coupled. That sucks anyway.


140 posted on 05/12/2005 3:40:12 PM PDT by johnb838 (Free Republicans... To Arms!)
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To: All
Federal Law supercedes State Constitutional Law, that is why it is important we get those Federal Judges through the Senate.

Federal Amendments are very hard to get passed, but state Amendments are easier to get passed all we need are good Conservative Judges!

141 posted on 05/12/2005 3:40:48 PM PDT by Evolution (Tolerance!? We don't need no stinking Tolerance ! ! !)
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To: No Dems 2004
This guy is only making matters worse for the gays. It's going to throw kerosene on the fire. Those floozies are in trouble!!!

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.

142 posted on 05/12/2005 3:44:02 PM PDT by RJL
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To: All
You cant eliminate Judicial Review, JR is what the courts are suppose to do. And JR worked fine for this country until Leftists Judges took over the courts.

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!

143 posted on 05/12/2005 3:45:44 PM PDT by Evolution (Tolerance!? We don't need no stinking Tolerance ! ! !)
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To: goldstategop
When a single judge takes it on himself to disregard the views of 70% of the voters in the American heartland, we are heading for a constitutional crisis.

Unless, of course, the 70% just back down and give up. Which is the most probable outcome.

144 posted on 05/12/2005 3:45:51 PM PDT by madprof98
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To: RJL

>>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.


145 posted on 05/12/2005 3:47:06 PM PDT by paul_fromatlanta
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To: wk4bush2004
At the end of the day, who really cares? Do you really feel that threatened if two guys are married. I have enough things in my own life to worry about that I couldn't care less what two males or females are doing with each other. There are so many more important issues at hand: Iraq was looking good for a while, now insurgents are on the rise. Oil was looking rough for awhile, now it's ever so slightly coming down, but more could be done. Social security still needs to be privatized. With all the issue looming, I would rather have Dubya and company working towards my well being rather than meddle over useless affairs. This will affect your life none at the end of the day.
146 posted on 05/12/2005 3:48:27 PM PDT by cosmicassassin (Just give me what I came for, then I'm out the door again.)
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To: cosmicassassin

But it affects the morals of our country. America was founded as a Christian nation and homosexuality is immoral.


147 posted on 05/12/2005 3:49:55 PM PDT by wk4bush2004
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To: cosmicassassin
>>At the end of the day, who really cares? Do you really feel that threatened if two guys are married<<

I don't feel threatened by gay marriage - if they have preacher who will marry them then that's a private matter.

I have an issue with tax breaks or special privileges though. Government recognized marriage is special because that's the best place for children to come from. A civil union should be sifficient.
148 posted on 05/12/2005 3:53:30 PM PDT by paul_fromatlanta
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To: goldstategop
"The Left does not believe in democracy and the rule of law"

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."

149 posted on 05/12/2005 3:57:16 PM PDT by tahiti
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To: planekT

Thanks.

The rats can't win elections except in the rat controlled big cities. So they use their judges to make laws.


150 posted on 05/12/2005 3:57:53 PM PDT by Grampa Dave (The MSM has been a WMD, Weapon of Mass Disinformation for the Rats for at least 5 decades.)
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