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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: Grampa Dave; Squantos; B4Ranch; Travis McGee
Today was an awful day for the republic.

No words suffice.

161 posted on 05/13/2005 1:41:54 AM PDT by risk
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To: wk4bush2004
But it affects the morals of our country. America was founded as a Christian nation and homosexuality is immoral.

Many Freepers dont comprehend that and have succumb to the culture of moral relativism.

162 posted on 05/13/2005 5:18:17 AM PDT by Evolution (Tolerance!? We don't need no stinking Tolerance ! ! !)
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To: goldstategop

YOur comments show clearly that you do not understand the distinction but that matters not since the Founders did. That is why they established judicial review which only followed the tradition of the states that is also why they did not want "democracy" but established representative governmnent with divided powers.

Court rulings contrary to our wishes can only stand if they are not completely out of step with the views of the majority but changing them takes a long time as planned. Changing the Courts is the slowest process in government and not easily done as FDR found out. And he was far more powerful than any leader we have had since Lincoln.

However, hysterical reactions to bad rulings are not going to accomplish anything. It is doubtful that this ruling will stand upon appeal in any case.

But without judicial review there is no real constitutional law for there would be no body that could tell Congress it cannot pass unconstitutional laws hence the Constitution would mean nothing.

163 posted on 05/13/2005 6:49:22 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: jebanks

I want to hear from all the RINOs in the Senate that say we don't need an amendment to the USC to protect marriage. Obviously anything less will just be through out by our masters the judges.

164 posted on 05/13/2005 6:53:45 AM PDT by Pietro
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To: goldstategop

Rutgers v. Weddington in no way "limited the powers of the federal government vs. the states" quite the contrary. It threw out NY state law which was contrary to the Peace Treaty with Great Britain ending the Revolutionary War. (And the ruling was extremely unpopular with the majority of New Yorkers.)

You clearly do not understand the history of the Founding if you say things like that which are completely false. And Madison v Marbury was not even the first case of judicial review by the USSC. That case came almost a decade after the USSC ruling that the Carriage Tax Act was constitutional. This also had nothing to do with limiting federal power.

You can't just make up stuff and expect that anyone knowledgeable is just going to accept it. THAT is what you complain of wrt these judges.

165 posted on 05/13/2005 7:03:19 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: Borges

While we hate these rulings as much as the more emotional we understand that the Founders had good reason to form the Constitution as they did. Fortunately they did such a good job that the nation has survived horrible court rulings in the past and will in the future.

It is disturbing to watch "conservatives" prepare to throw out the baby with the bath water after rulings they don't like. This tendency was given great impetus by the reaction to the Schiavo rulings and its danger becomes more obvious.

166 posted on 05/13/2005 7:07:15 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: jebanks
I heard this yesterday on the news.

Now, I want any of you to correct me if my thinking is wrong.

It is nearly impossible to create a "law" on things like this because it will be struck down as unconstitutional. So the logical thing is to amend the constitution. So, the people of the state voted - by an overwhelming majority - to amend their constitution but a judge struck it down because it is unconstitutional.

Am I following this correctly so far? So, if I am not mistaken, if we happen to gather enough momentum and amend our U S Constitution to, let us say, a marriage amendment. Does this mean a Supreme Court Justice can strike down an amendment because it is unconstitutional?

My next question is what else is there to do if you cannot change the law or change the constitution?

167 posted on 05/13/2005 7:08:45 AM PDT by 7thson (I think it takes a big dog to weigh a hundred pounds!)
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To: goldstategop

I see no problem with amending the Constitution to change tenure but it will take that. Without Judicial Review, however, there is no Constitution. The concept has no meaning if there is no means of maintaining its supremacy over ordinary law.

168 posted on 05/13/2005 7:09:24 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: Brilliant

Recall him.

169 posted on 05/13/2005 7:11:59 AM PDT by international american (Tagline now flameproof....purchased from "Conspiracy Guy Custom Taglines"LLC)
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To: wk4bush2004

The Constitution is the HIGHEST form of the Will of the People and it established the judiciary to bring ordinary law into accord with the Constitution. I believe this judge was wrong but not because he went against the will of the people. However the people of Nebraska cannot impose its will contrary to the Constitution.

There would have been no end to slavery if the will of the people had been consulted or even a Revolution since only about a third of them wanted independence.

170 posted on 05/13/2005 7:13:24 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: tahiti

No I never heard of him. My understanding of the constitution is based upon Hamilton and Marshall.

171 posted on 05/13/2005 7:15:11 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: tahiti

Excellent points.

172 posted on 05/13/2005 7:18:05 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: escapefromboston
Question: If I was an employee of the State of Nebraska (a guy can dream can't he) could I share benefits with someone who was just a good friend?

It'll be interesting when the first straight, unmarried couple applies for insurance under this act. Telling them that unmarried gay couples can have insurance but not unmarried straight couples is clearly discriminatory.

173 posted on 05/13/2005 7:21:23 AM PDT by Terabitten (I have a duty as an AMERICAN, not a Republican. We can never put Party above Nation.)
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To: international american

There is no recall of a federal judge nor impeachment for poor rulings. This is why there is judicial review. His ruling will be reviewed and likely overturned on appeal.

174 posted on 05/13/2005 7:21:33 AM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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To: justshutupandtakeit

Brain cramp....thanks for the correction.

175 posted on 05/13/2005 7:48:23 AM PDT by international american (Tagline now flameproof....purchased from "Conspiracy Guy Custom Taglines"LLC)
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To: tahiti

Its only 'correct Constitutionally' if one adheres to the absurd 'living document' theory and believes that Judges have the legitimate authority to read into the Constitution things that clearly aren't there.

Not one part of the Constitution was ever ratified with the intent that it be used by the Left as it does today. To take provisions of the Constitution and extend and apply them to things for which they were never envisioned or intended by its framers or the nation that ratified them is to extend to the Courts a power they were never intended to have, and is to guarantee victory for the Left in the Culture War.

To take the 14th Amendment and use it to create a right to gay marriage is to violate the principle of having the consent of the governed because, again, the people have never given consent to such nonsense. The nation that ratified the 14th knew who and what it applied to, and it wasn't gay marriage. It is for judges to respect that original intent, and leave such matters to the people to decide as the 10th Amendment says.

176 posted on 05/13/2005 11:24:14 AM PDT by Aetius
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To: princess leah

"Betcha he's a Clinton Nominee! We need a list of all the judges who've ruled "against the mainstream" on the liberal side and send it up to Washington to have made into a CHART for those damn senators!"

Exactly. I can't remember how many times I've heard some true extremist like Sen Schumer, Kennedy, Clinton, Boxer, etc go on about how Bush's judges are 'out of the mainstream' and are radical. The best retort the GOP seems to have is that judges shouldn't legislate from the bench, and while that is true, it lacks bite.

To give it more power, the GOP must be ready to list one absurd leftwing decision after another. Make it clear how judges have made impossible even the most reasonable, mainstream restrictions on abortion; how they have arrogantly disregarded the people and the Constitution in creating a right to gay marriage; how they have twisted the Establishment Clause beyond recogintion to where they can use it to ban public nativity scenes and prayer before highschool football games; how they have given citizen-like status to illegal aliens, etc.

The GOP needs to make it clear that in reality conservative judges are much closer to the mainstream than anything you'd get from the Dems. They need to make it clear that the worst thing conservatives would do (from the pt of view of a liberal-moderate) is to leave the decision to the people and/or their representatives. They will not impose anything, which stands in stark contrast to liberal judges who repeatedly impose one thing after another that the people would reject, or already have rejected.

There is no excuse for not going to great lengths to make it known to the public what exactly constitutes a mainstream judge to the likes of Schumer and Kennedy.

177 posted on 05/13/2005 11:33:57 AM PDT by Aetius
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To: yellowdoghunter; B Knotts

I agree with you both. Federal Marriage Amendment.

If insurance companies want to allow employees to cover a significant other (sister, mother, best friend, surrogate lover, etc.) then let 'em. They durn shure find enough excuses not to pay as it is.

We know same-sex unions are un-Christian. What they really want is to have that rewritten. This should be an INSURANCE issue IMHO, and NOT a morality issue.

178 posted on 05/13/2005 11:40:30 AM PDT by Froufrou (Froufrou Loves The Spurs!)
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To: Aetius
"To take the 14th Amendment and use it to create a right to gay marriage is to violate the principle of having the consent of the governed because, again, the people have never given consent to such nonsense."

The "right to privacy" to have sexual relationship with the gender of your choice is clearly a right "retained by the people," as protected by Amendment IX.

If two consenting adults wish to have a contractual union of their lives and thus their assets, why would they not be afforded "equal protection of the laws?"

I am not a homosexual. I believe homosexuality, in particular for males, is a death wish.

But I think it is textually clear in the constitution that a citizen has a right to make a dumb decision about their sexual lifestyle.

As to your remark about "consent of the governed," I have never consented to being governed.

I have "consented" to give up the natural right of protecting my natural rights on my own by "delegating" in an enumerated and limit amount, to my government, the "power" to help me protect my natural rights, in conjunction with my fellow citizens.

In the absence of actual consent, a law must be shown to be necessary and proper for it to bind in conscience. To be proper it must, amount other things, not violate the rights "retained by the people."

179 posted on 05/14/2005 8:47:20 PM PDT by tahiti
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To: tahiti

Well that is the heart of the entire debate here -- who is to decide what these unenumerated rights are. The Ninth Amendment does not say that it is for the judiciary to declare for all what constitutes one of these rights.

That you apparently take the view that it is proper for the Courts to decided for all how the 'spirit' of the Constitution conveys rights never envisioned as an extension of the parts of the Constitution they use to derive them from, places you firmly on the side of the Left in this debate.

If there is a right to privacy and abortion and gay marriage then that is for the people and their elected represenatives to decide.

My comments about the consent of the governed have to do with Original Intent. There is a certain understanding of what the Constitution and its following Amendments meant when passed, or given consent through the ratification process.

You think that the right to privacy, and all that entails, is 'clearly' a right retained by the people. Who says? The people haven't said that. That you support the notion that its proper for judges to make these sweeping decisions is to place them on a footing clearly superior to its allegedly coequal branches, and to confer a level of power to them not intended by the Founders. And it gets into all sorts of inconsistencies. Tell me, since the Sup Court in the late 80s said that state sodomy laws were constitutional, does that then mean that was in fact no right to the private sexual relations you speak of until the Court reversed itself a couple of yrs ago? What if they reverse themselves again? By accepting the notion that its proper for the Courts to be the final arbiters of what does and does not constitute one of these enumerated rights means one must accept this seesaw back and forth.

And then of course you take it further by saying that not only does this 'right' to private sexual relations exist, but that it is also a right to have it recognized in the public realm. That's ridiculous. Society is under no obligation to grant recognition to something of no societal value.

You say for a law to be proper and necessary it must not violate one of these unenumerated rights retained by the people. So I ask again; who is to say what these rights are? You apparently favor having judges determine this, while I prefer it be left to the people. At the time of Roe, when the Courts overstepped its proper bounds and made national law, some more liberal states were already moving to liberalize their abortion laws. This would have continued. Connecticut's legislature, in a first, just volunatarily decided to grant civil unions to homosexuals in their state. On the other hand, the people of 10 states last year voted to bar gay marriage and civil unions. That, in the absence of a Constitutional Amendment, is how it should be handled. If one does not like it, then they can always vote with their feet and move. Its the United States, not the Uniform States.

The problem the Left has is that they are an intolerant bunch. They know that most states disagree with them about what constitutes a Constitutional right. They know they can't win via the proper political and popular channels. So they turn to the one branch that can impose their radical, out-of-the-mainstream views on the entire nation, and in doing so dress it up under the umbrella of protecting Constitutional rights that apparenlty never occured to those who actually crafted and ratified the Constitution.

180 posted on 05/15/2005 7:32:52 AM PDT by Aetius
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