Don't Let Me Stop You: Court Reversal of Ban on Same Sex Marriage in Nebraska

Unless you've been in a cave for the last week, you have probably already read the national headlines about the court decision on Nebraska's ban on same sex marriage. Here is a background article about the case from the Lincoln Journal Star.

The basic facts are:

In 2000 the voters of Nebraska voted 70% to 30% to enact a state constitutional amendment that forbids the state and local governments from recognizing any marriage or civil union between same sex couples.
Five Nebraska same-sex couples, along with the American Civil Liberties Union of Nebraska, Citizens for Equal Protection, and Nebraska Advocates for Justice and Equality, filed a federal lawsuit seeking to overturn the amendment.
They argued that the amendment goes far beyond a ban on marriage and restricts rights of gays in other ways.
Last Thursday US District Judge Joseph Bataillon, a Clinton appointee, found the state amendment violated the federal constitution, amounting to "punishment" of gays.
This decision will be appealed by the State of Nebraska to the Eighth US Circuit Court of Appeals.
Whichever side loses there will surely appeal to the US Supreme Court.

More newspaper articles on the case can be found here:
Lincoln Journal Star Online: "Sides disagree on gay-marriage law's future."
Lincoln Journal Star Online: "Ruling re-ignites contentious debate."
The Columbus Telegram: "State's gay marriage amendment taken down."
Omaha World Herald: "U.S. Judge Rejects Neb. Gay-Marriage Ban."
Omaha World Herald: "Same-sex ruling no surprise to some." (registration required)
Omaha World Herald: "Gays welcome judge's action as marriage ban's fans regroup." (registration required)
Omaha World Herald: "First, a deep breath." (editorial, registration required)
(The World Herald links will break in 3 weeks.)

On his blog, Ryne McClaren has an excellent post on Judge Bataillon's decision. Ryne also provides this link to a thorough, legal analysis of the decision by law professor, Eugene Volokh. The Volokh analysis is well worth reading, and not too heavy on the legalese. Briefly, he believes the ruling is "quite mistaken and will be reversed on appeal."

My opinions in the matter are very much like Ryne's. I was opposed to the amendment, and I voted against it. However, I think the court decision is another outrageous judicial overreach. I support allowing gays to form civil unions or even marry, provided such arrangements are enacted through the normal lawmaking processes. This is an essential part of the rule of law. I cannot support courts substituting the judge's personal opinions willy-nilly for the will of the majority.

Courts are not supposed to be writing or rewriting laws to fit their own views of what is Good. American liberalism has completely abandoned this essential principle in the name of expediency. Unable to get popular support for enacting "Good Things" into law, liberals turn to the courts more and more to meet their goals. To today's liberals the ends justify the means, and if the "will of the people" happens to contradict the "progressive" agenda, the courts should impose "virtue" on those ignorant yahoos.

Rampant judicial activism, such as we have had on the Left for over 20 years now, is extremely corrosive to our political system. It is no coincidence that the judicial confirmation process has become highly politicized and unbelievably nasty (c.f. Clarence Thomas and Robert Bork). This is why Senate Democrats are taking the unprecedented (and unconstitutional) step of filibustering the nominations of appellate judges. This is why it is essential to confirm these judges and others who will restore the constitutional balance that existed and return the courts to their proper role.

It would be nice to think that the Republican Senators understand the importance of the stakes here. Judicial activism is the only chance liberals have left for enacting their unpopular agenda. They will not give it up without a fight, and they fight dirty. They cast moves to restore 200 years of Senate tradition, supported by the Constitution, as a "nuclear option" to squash sacred minority rights. They smear any judge who might stop or reverse their use of the courts to write new law, as "out of the mainstream" or "reactionary" or "extremist." Senator Reid has publicly referred to things he hasn't even read in a nominee's confidential FBI file. He has claimed Justice Thomas' opinions are "poorly written" without citing evidence or example.

Senator Hagel has been disappointingly squishy in defending the president's appointment powers and opposing Democratic "scorched earth" tactics. Senator Frist has been slow and overly cautious. Senator Specter has been..., well, typical Specter. Some of these nominees have been waiting for confirmation for over 4 years now. Do your jobs, gentlemen.

Whatever joy opponents of the amendment gain from the decision, it is likely to be short-lived. For proponents of gay marriage, such victories through judicial activism will ultimately prove to be Pyrrhic. The amendment would never have been on the ballot in the first place, let alone passed, without the threat of judicial fiat legalizing gay marriage.

This verdict is certain to galvanize the forces pushing for a federal constitutional amendment banning gay marriage. Such a ban would be bad for the country, but unless and until the Republicans in the Senate show the guts to rein in runaway judges, more and more people will see constitutional changes as the only way to do so.