Federal judge rules gay marriage ban unconstitutional (Nebraska)

Omaha World Herald ^ | 5/12/05 | Todd Cooper

[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.

[goldstategop]

Hamilton meant the courts would see to it acts that transgressed the federal government's limited powers had no effect. I do not think he meant it to mean federal judges could take it on themselves to declare state laws unconstitutional on a whim. In any case, a limited government can be achieved only if the operation of the laws itself is respected. When they are not, we have in practice a despotism. And to cure the type of despotism we have now in this country, we must abolish judicial review.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[goldstategop]

Remember this: judges are accountable to no one. If the matter of constitutional interpretation is left to legislators and the people disagree with their interpretation, the legislators can be voted out of office. There is no way to hold activist judges with a lifetime tenure accountable except through impeachment and that is not a real solution to the problem at hand.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[kennyo]

The ONLY way to put a stop to this nonsense is through the ratification of a Federal Marriage Amendment.. a judge will just rule whatever you voted on as unconstitutional.....

This being the case,what good would an amendment do.It's like passing a law saying one must follow the law.

[Borges]

Since the EC is specifically outlined in the Constitution there would be no basis for such a ruling. Our problem is judges making liberal interpretations of the Constitution and finding laws that aren't there...not so much ignoring what is there.

The Amendment you propose would never go through because that would essentially give the Federal Government the power to amend the Constitution without the consent of the States. No way the states would go for it.

[yellowdoghunter]

This being the case,what good would an amendment do.It's like passing a law saying one must follow the law.

Good question. I wish I knew. It looks like if we pass a constitutional amend. then the judges will just declare it unconstitutional. So where do we go from there? I don't have an answer...hopefully someone does.

[Borges]

It looks like if we pass a constitutional amend. then the judges will just declare it unconstitutional.

Amendments to the Federal Constitution are de facto Constitution.

[Borges]

should be 'de facto Constitutional'

[goldstategop]

Actually abolishing judicial review would depoliticize the judiciary. It no longer matters what a judge's philosophy is if they can't declare on the constitutionality of a law. Insofar as they are confined to interpreting how to enforce the law, there is no controversy over their decisions. If people are not happy with a law, then they have to elect politicians who will give them the laws they want. That is as it ought to be in a democracy.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[Mack the knife]

"He later told the Omaha World-Herald that he was trying to make a joke about some Mexican officials' reputation for taking bribes. But the plaintiffs, who are Mexican-American, complained. "

The judge was in fact right, but the truth is not a legitimate defense in a PC world.

I just finished Gary Jenning's latest "Aztec Blood", and I believe it is relevent here. The book describes how the culture of "mordida" began with the initial Spanish rule of the new world (i.e., the Governor of Mexico bought his position expecting that he would recover much more than that in the form of bribes, and it filtered down from there to all government offices). While the culture of Spain may have moved away from the culture of "mordida", it has become institutionalized south of our border.

It occurred to me that this concept is possibly the single largest impediment to their economies. With a culture of "mordida", there is no rule of law or right to property. So anyone who does earn wealth sends it abroad where it is more difficult for the government officials to confiscate it, rather than reinvesting the profits into their business.

These countries will remain poor until some dictator announces a "zero tolerance policy" and kills any official who takes a bribe, and kills anyone who gives a bribe, and continues this policy for about 20 years.

I first became aware of this problem when my roommate in college had to drop out and go home to Mexico to bribe officials not to confiscate the family business when his father died.

[Kryptonite]

Boy are you off base.

The Lawrence decision determined that a state cannot criminalize sodomy. That's all - it didn't create some federal right to be homosexual.

You're just as bad of a nutcase as these judges if you believe same sex marriage is now protected, based on Lawrence.

If a state wants to define marriage as between one man and one woman, there is no Constitutional prohibition against doing so. There's gonna be an absolute uproar in Nebraska over this turd's ruling.

[Maceman]

The Amendment you propose would never go through because that would essentially give the Federal Government the power to amend the Constitution without the consent of the States. No way the states would go for it.

No it wouldn't, because the process could only be triggered by a Supreme Court ruling. Whereas now the Supreme Court has the power to amend the Constitution without the consent of ANYBODY.

Given a choice between the two scenarios, mine is infinitely preferable in terms of saving us from tyranny, because at least the final decision makers are answerable to the majority of the people -- without having our laws created by the tyranny of a plebiscite.

And you haven't explained what would stop the Supreme Court from ruling the Electoral College invalid tomorrow as I have suggested. If your answer is: "Trust them, they wouldn't do it," forgive me if I don't take you seriously.

[Borges]

These decisions are coming from their ideas about 'how to enforce' the Due Process clause. And we aren't a Democracy but a Constitutional Republic. Democracy is three wolves and a chicken voting on what to have for dinner. A good judge is the guardian of the Constitution.

[goldstategop]

Actually, if a federal judge can declare a tate constitution or a provision thereof void, what's to keep the SCOTUS from declaring the U.S Constitution void? In reality, they've already gone a long way towards that by accepting international jurisprudence in how they decide constitutional disputes under controversy. Its not too far-fetched at all to imagine that Canada's acceptance of gay marriage means the U.S must do so as well. Call it a "living tree" theory of constitutional law. Here is a very good reason for abolishing judicial review in the post-modern era.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[BlueNgold]

1997 - Clinton Nominee
What I could find in 5 mins...
- He has declared death by electrocution unconstitutional
- He once had to declare a mistrial for making a joke about carrying extra cash when you visit Mexico during jury selection.
- He has been a speaker at events for the "American Constitution Society for Law and Policy (ACS)" a progressive organization boasting such luminaries as Ginsburg, Clinton, Edwards, Gore, and the other Clinton.
- He has sided with the NEA in previous rulings (big shocker there)
- From what I can glean he has consistently, as in this case, ruled that states rights are limited and subordinate to those of Federal Agencies and the US Federal Courts.

[Borges]

If your argument is 'They could do it man!' then obviously I have nothing to refute that. As long as we're going there then what's to stop them from deciding that The U.S. Senate is a violation of one-man one-vote? (2 Senators from each state regardless of population) As a matter of princple I feel more comfortable with the Constitution being guarded by those aren't subject to various popular whims then those who are. But I see your point.

[goldstategop]

This decision is an offshoot of Lawrence. All laws that constrain homosexual conduct are constitutionally infirm, including laws that ban same sex marriage. If homosexual behavior's legal, you can't argue gays and lesbians have no right to be married like straight sex couples are. Otherwise its bigotry and discrimination. That was what the Massachusetts Supreme Court concluded last year and a California State Superior Judge decided a few months ago. It was simply a matter of time before a federal judge saw it the same way. Again, here we are now.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[EternalVigilance]

Frederick Douglas famously said, "One man with God makes a majority."

Today's liberals, and the judges they've managed to get appointed, think THEY are God....

And unfortunately, the leaders ostensibly on our side cower at the altar of the false god of judicial supremecy, so there is no check on these petty little tyrants.

They cannot be reined in until we change that.

[Borges]

Such a case was brought to them before. Prohibition I think. Someone claimed the Amendment was Unconstitutional. The USSC at the time ruled that they don't have the power to void a Constitutional amendment. Since they have to base their ruling on the text they cannot decide to change the text but only to interpret it.

[goldstategop]

A "good" judge reads the Constitution the way he likes it. To be honest, if judges ruled our way, liberals would be agitating for the abolition of judicial review also. The reason I want to get rid of it is not that judges do what they're supposed to but that it places in them a form of absolute power no elected official enjoys. And to rephrase Lord Acton, "absolute power corrupts and corrupts absolutely."

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

[MRMEAN]

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".

Or give Nebraska taxpayers a nice tax hike.