Omaha stakes

Posted: May 16, 2005 12:00 AM

Last Thursday, a federal judge in Omaha overturned Nebraska?s constitutional amendment that banned same-sex ?marriage.? And the press reaction to the story was muted. Why? Because this decision proves that we and other critics of the courts and advocates for a constitutional amendment banning same-sex ?marriage? have been right all along.

In November 2000, Nebraska voters, by a 70-30 margin, approved the amendment that stated that ?only marriage between a man and a woman shall be valid or recognized in Nebraska.? It further prohibited the recognition of the ?uniting of two persons of the same sex in a civil union, domestic partnership or other similar same-sex relationship.?

The amendment was approved in the wake of a decision by the Vermont Supreme Court. Nebraska?s concern, as elsewhere, was that same-sex couples would marry in Vermont, come to Nebraska, and demand legal recognition.

Given the way state and federal judges find previously undiscovered or even unimagined ?rights,? supporters of this and similar amendments wanted to lock this prohibition into their constitution. But even this turned out not to be enough.

Federal judge Joseph Bataillon threw out the amendment, saying it imposed ?significant burdens on both the expressive and intimate associational rights? of gay men and lesbians.

Instead of deferring to the voters? judgment on the nature of marriage, Bataillon chose to insult them. He wrote that the amendment ?goes so far beyond defining marriage that the court can only conclude that the intent and purpose of the amendment is based on animus against this class.?

Ah, yes, if that language sounds familiar to ?BreakPoint? listeners and readers, that?s because it?s straight out of Romer v. Evans. In that case, the Supreme Court overturned a Colorado amendment that prohibited extending anti-discrimination laws to cover sexual orientation. The majority, led by Justice Kennedy, concluded that the only possible reason people would approve such a measure was hatred of homosexuals.

Now, given the prominence of same-sex ?marriage? in both public debates and in the liberal imagination, you would think that this story would warrant big headlines in major newspapers.

You would be wrong. The New York Times simply reprinted the AP story. David Buckel, a lawyer for the plaintiffs, downplayed the ruling?s significance and called the Nebraska law ?unique.?

Why the muted response? Because the ruling proves that social conservatives are right about activist judges and about the need for the Federal Marriage Amendment. Opponents of the proposed amendment have argued that it?s unnecessary since states have enacted their own constitutional amendments defining marriage.

I suppose we can thank Judge Bataillon for proving that this approach will not work. A judge?s willingness to characterize the will of 70 percent of the electorate as ?animus? manifests a contempt for democratic decision-making. When judges feel free to substitute their opinion for nearly everybody else?s, only a constitutional amendment will do.

That?s the message you need to send to your U.S. representative and senators. Put this matter beyond the reach of judges whose animus for the electorate knows no bounds. We need a federal marriage amendment now.

For further reading and information:

Today?s BreakPoint offer: Call 1-877-322-5527 to request BreakPoint?s free Marriage Amendment Information Packet.

Associated Press, ?Judge Voids Same-Sex Marriage Ban in Nebraska,? New York Times, 13 May 2005 .

?Same-sex marriage ban axed,? Omaha World-Herald, 13 May 2005 .

?Gay marriage ban in Nebraska voided,? Kansas City Star, 13 May 2005 .

See BreakPoint?s sanctity of marriage research page.