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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: kcvl
A federal judge declared a mistrial in a civil case against two police officers accused of using excessive force after the plaintiffs' attorney objected to a joking comment the judge made about Mexicans.

Smart move to declare a mistrial right away and pick a new jury. No matter what the results of the trial were, it would likely be appealed and have to be retried. Don't waste the time and money of the current trial and appeal.

81 posted on 05/12/2005 2:31:45 PM PDT by KarlInOhio (Relying on government for your retirement is like playing Russian roulette with an semi auto pistol.)
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To: Borges
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.

I agree that the Constitution should be above popular whim. Getting a super majority in both houses plus the president's signature (which is not even required for a Constitutional amendment) is no political cake-walk and a far cry from subjecting our laws to popular whim.

It certainly beats a situation we have now, which is that a de facto amendment can be shoved down our throats with the stroke of a pen wielded by 5 people who never have to answer to anybody.

82 posted on 05/12/2005 2:32:44 PM PDT by Maceman (Too nuanced for a bumper sticker)
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To: jebanks
I'd like to see this in response.

State of Nebraska - "This is our state. We do things our way here, and we are not going to let some unelected judge tell us how to run things. Our response to this ruling is 'Negative'. This judge can now sit down and shut the hell up."

83 posted on 05/12/2005 2:33:28 PM PDT by Dan from Michigan ("My guvnor don't got the answer")
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To: Borges
No longer, I'm afraid. Not with our judges looking to European, African and Canadian courts for guidance. I mentioned the fashionable "living tree" theory of constitutional law. Perhaps once upon a time, judicial review was an instrument that restrained radical excesses on the part of elected officials. Today, it has been subverted into an instrument by which judges get to trample the social and political preferences of the people on a whim. That's why I definitely think the country would be better off without it now.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
84 posted on 05/12/2005 2:34:09 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: goldstategop
Well liberals are calling the judges currently being filibustered 'Conservative Judicial Activists'. Coming from literary studies background, I know this discourse quite well. It's not the writer but the person who interprets a text that has the last word. As we get furhter and furhter away from the time the Constitution was written we're only going to have more of these issues IMHO
85 posted on 05/12/2005 2:34:40 PM PDT by Borges
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To: jebanks

This is the PERFECT ILLUSTRATION as to why a Constitutional Amendment is necessary.


86 posted on 05/12/2005 2:35:14 PM PDT by Mister Baredog ((Minuteman at heart, couch potato in reality))
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To: B Knotts

We need a Right-to-Life amendment worse. If we can get this one too, or make it a rider, great. If we can get one to reform the federal courts, even better. I fear this has gone further than changing personalities will cure.


87 posted on 05/12/2005 2:37:03 PM PDT by johnb838 (Free Republicans... To Arms!)
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To: MRMEAN
A few years ago the Nevada Supreme Court overruled the state's Constitution to order on its on initiative, a tax increase. So yes, the courts are a real danger to our liberties and American way of life. And they get more destructive with every passing day. It is no exaggeration to state they are out of control and need to be reined back in. We apparently have forgotten, on the altar of judge worship, the doctrine of the separation of powers.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
88 posted on 05/12/2005 2:37:21 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: goldstategop
goldstategop writes:
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.

Which is why we need to do two things:
1. Repeal lifetime tenure for _all_ federal judges
2. Establish term limits for _all_ federal judges (the "term" would be somewhat longer than for elected positions, say, perhaps, 10 years for the first term, after which they could be re-nominated and re-confirmed for 10 more).
Of course, both changes could only be achieved through a Constitutional amendment.

As you stated, impeachment isn't a "real solution". Term limits for judges _is_ such a solution.

I, too, think it's time for a Constitutional amendment that limits the power of judicial review - if not totally, then to give the Congress the power to invalidate decisions of the Supreme Court via supermajority votes.

Neither of these amendments is going to pass anytime soon (sigh).

Cheers!
- John

89 posted on 05/12/2005 2:38:06 PM PDT by Fishrrman
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To: goldstategop
All laws that constrain homosexual conduct are constitutionally infirm, including laws that ban same sex marriage.

No. Take a step back and think about the finite legal issues in each case. I've been blessed to make a living on this stuff, and I don't care how Lawrence is distorted, one man one woman marriage doesn't "constrain" homosexual conduct. Criminalizing sodomy constrains sodomy, but one man one woman marriage does not prohibit or otherwise constrain sex of any stripe. The government's out of the bedroom, but it's still on that marriage license. That's where the logical hole is and that's exactly where the SCOTUS will finally put an end to all this nonsense if they ever decide to accept a case. While it is frustrating to me that many very bright people are being misled, I am very confident that the legality of this legislation will be confirmed, eventually, by the Supreme Court.

90 posted on 05/12/2005 2:38:45 PM PDT by Kryptonite (Pope Benedict XVI - The Rat Zinger!)
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To: Borges
Exactly my point. To eliminate activism on the part of judges and to depoliticize the judiciary, judicial review will have to go. I trust the elected representatives of the people to safeguard the people's interests more than I trust any judge to do it for them.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
91 posted on 05/12/2005 2:39:23 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: JoeV1
Are you referring to the concept of states' rights that applied when the Supreme Court invalidated the State of Florida's methology and certification of elections in that state? Or the same concept that led Congress and the administration to attempt legislation and executive power to invalidate Florida's highest court's interpretation of its own probate statutes during Terry Schiavo dust-up?

Are we describing a concept of states' right being inviolate and a viable doctrine only when its application coincides with one's own ideological perspective of a situation or in an outcome with which that person (or identifiable group) finds contrary to what they want the outcome to be?

Either constitutional law is a continum and has a high degree of predicability, or it is merely a bundle of suggestions. Most of the time the law is consistent with justice, that is a happy circumstance. But when justice and the law are not congruent, and it's a case in which equity cannot be a remedy, the law's consistency, predictability, stability and precedent are superior to the anecdotal case before a court.

We select trial and appellate judges to--as is the phrase so popular among talk-show folks and those who either don't understand the role of the judiciary or want the court to decide only the way they favor - - decide cases based on the plain language. Yet, when courts exercise their role in interpreting ambiguous and vague constitutional commands (like due process, equal protection, etc.), there is always the same discrete group that screams for judges' scalps. Courts are "out of control" when they apply long standing constitutional principles to evolving real-life circumstances and when they protect minorities from the tyranny of a transient majority. It's a political reality as old as the Constitution itself and neither the screams of today's right fringe nor the future discontent of tomorrow's agitated interest group will change the sanctity of the judicial process and the role of judges.

92 posted on 05/12/2005 2:43:34 PM PDT by middie
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To: goldstategop

Yep. Nice concise way of putting it. The Constitutional Amendment to Abolish Judicial Review.

It will never fly. We need a nice soft euphemism. But we have to defang the courts. I guess we are lucky that they are overreaching to the point where we are going to be able to get the country behind us now.


93 posted on 05/12/2005 2:43:35 PM PDT by johnb838 (Free Republicans... To Arms!)
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To: Fishrrman
10 years sounds to me a reasonable approach to depoliticizing the judiciary. No one else in our democracy has lifetime tenure. State judges certainly do not have it. And we should give voters the ability to recall judges who do not act in a manner befitting their office. Remember Rose Bird in California and her gang repeatedly striking down the state's death penalty law? There's an approach that works.

And of course we need to restore the separation of powers by ending the ability of judges to act as Super Legislators through abolishing judicial review. As you mentioned, neither event is going to happen in the near future. But if we want to save our country, make no mistake about it, the judiciary will have to be firmly curbed.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
94 posted on 05/12/2005 2:44:52 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: goldstategop
The answer is not to appoint judges

Yer dern tootin... it's impossible to predict what an individual will do once they are on the bench, as we've learned to our chagrin over and over and over again.

95 posted on 05/12/2005 2:45:20 PM PDT by johnb838 (Free Republicans... To Arms!)
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To: Grampa Dave

Thought you'd want to see this. Another candidate for early retirement.


96 posted on 05/12/2005 2:47:52 PM PDT by planekT (Go DeLay, Go!)
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To: Kryptonite
Various judges so far have not agreed with your optimistic reading of the situation. I think when push comes to shove, the SCOTUS is going to invalidate same sex marriage bans across the country. If you take Lawrence's logic to its ultimate conclusion, it admits of nothing except full sexual equality. If you don't believe me, feel free to ask Sen. Rick Santorum. He warned us where this was leading and guess what? The future is now.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
97 posted on 05/12/2005 2:48:59 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: tahiti

Because there is no such thing as a "gay marriage". Marriage is between a man and a woman. I think that the "civil union" thing is probably roughly ok, but take all the special talk out of it. Anybody can enter into a limited partnership or a general partnership with anyone else. Use this as the framework if they want to assign rights to each other. Do not let these a-holes destroy the concept of marriage. For if the states are forced to allow these so-called marriages, then marriage has no meaning and needs to be obliterated from society. Then the faggots have acheived their true objective.


98 posted on 05/12/2005 2:49:23 PM PDT by johnb838 (Free Republicans... To Arms!)
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To: johnb838
As long as the Left sees the courts as their only remaining instrument to impose their agenda on the public, the kind of permanent changes needed are not going to happen. But there are a lot of interim steps Congress could take in the mean time. Republicans have to decide if they want to assert the will of our elected branches of government over the courts or whether they want to remain liked by liberals. The issue is joined.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
99 posted on 05/12/2005 2:51:55 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives On In My Heart Forever)
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To: goldstategop

Constitutional law is ONLY possible with judicial review.
You apparently confuse Democracy with a Republic.


100 posted on 05/12/2005 2:52:12 PM PDT by justshutupandtakeit (Public Enemy #1, the RATmedia.)
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