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CJ Cregg
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 Fri May 13, 2005 9:43 am Judge strikes down Nebraska gay marriage ban |
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| Quote: | Judge strikes down Nebraska gay marriage ban
WASHINGTON - In the first time that a federal judge has struck down a state constitutional provision limiting marriage to heterosexual couples, U.S. District Judge Joseph Bataillon on Thursday declared void a provision of the Nebraska constitution that defined marriage as only between a man and a woman and that banned same-sex civil unions, domestic partnerships and other similar relationships.
Bataillon declared in his ruling that under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, Nebraska cannot ban same-sex marriages and civil unions.
The ruling may call into question similar provisions in other states� constitutions.
Nebraska voters enacted the provision five years ago, with 70 percent approving it.
Will rekindle debate in Congress
The ruling is sure to rekindle debate in Congress over judicial power and may re-energize the forces backing an amendment to the U.S. Constitution to limit marriage to man-woman couples.
In a statement, Nebraska Attorney General Jon Bruning said the state would appeal Bataillon�s ruling.
�Seventy percent of Nebraskans voted for the amendment to define marriage as a union between one man and one woman, and I believe that the citizens of this state have a right to structure their constitution as they see fit,� Bruning said.
Bataillon, who was nominated to the federal bench by President Clinton in 1997 and unanimously confirmed by the Senate, based his ruling on two Supreme Court decisions, Romer v. Evans in 1996 and Lawrence v. Texas in 2003, with the majority opinion in both written by Justice Anthony Kennedy.
Nebraska could not limit the rights of gays and lesbians �to obtain legal protections for themselves or their children in a �same-sex� relationship �similar to� marriage,� said Bataillon.
The Nebraska constitutional provision, he said, �attempts to impose a broad disability on a single group� and the Romer decision bans such disabilities, he said.
The Nebraska provision �is at once too broad and too narrow to satisfy its purported purpose of defining marriage, preserving marriage, or fostering procreation and family life,� Bataillon wrote.
He called it �too narrow� because �it does not address other potential threats to the institution of marriage, such as divorce.�
And it is �too broad in that it reaches not only same-sex �marriages,� but many other legitimate associations, arrangements, contracts, benefits and policies.�
The judge said the amendment�s �broad proscriptions could also interfere with or prevent arrangements between potential adoptive or foster parents and children, related persons living together, and people sharing custody of children as well as gay individuals and people inclined to align with them to promote changes in legislation.�
GOP senator sees �threat�
Sen. John Cornyn, R-Texas, an advocate of a federal constitutional amendment to define marriage, reacted to Bataillon�s ruling by noting that, when the Senate debated the proposed federal marriage amendment last year, �opponents claimed that no state laws were threatened, that no judge had ever ruled against state marriage laws. They claimed that the states and their voter-approved laws defending marriage were under no threat. After today�s ruling, they can no longer make that claim.�
Matt Daniels, president of Alliance for Marriage (AFM), a group that has urged Congress to approve a federal constitutional amendment limiting marriage to heterosexuals, said the debate over marriage �is going to come down to a race between AFM�s marriage protection amendment and the federal courts.�
He predicted that "all of these state marriage amendments are going to be struck down in federal court, they are all going to go the way of Nebraska. The folks filing these lawsuits are taking this to the level of the Constitution, and we have to meet them at that level if the values of most Americans � and the common-sense understanding of marriage as the union of male and female � are going to be protected under our laws.�
More limited interpretation
But Amy Miller of the Nebraska American Civil Liberties Union had a far more limited interpretation of the ruling.
�This decision doesn't mean that gay people can marry, get a civil union or a domestic partnership, but it guarantees gay people the right to lobby their state lawmakers for those protections," she said.
Evan Wolfson, executive director of Freedom to Marry, a group that advocates legal recognition of marriages between gay couples, praised Thursday�s ruling.
�The court was right to do what courts are supposed to do � guarantee each of us our right to equal justice under law and equal citizenship in our country and home state,� Wolfson said.
�Government has no business putting obstacles in the path of people seeking to care for one another under law, and the court correctly found that Nebraska's sweeping anti-gay constitutional amendment offended basic American values of fairness, equality, family protection and access to the government,� he added.
� 2005 MSNBC
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Republican_Man
STV's Premier Conservative
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| Fri May 13, 2005 5:10 pm |
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MORE evidence of judges abusing their power. Nice 
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"Rights are only as good as the willingness of some to exercise responsibility for those rights- Fmr. Colorado Senate Pres. John Andrews
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Zeke Zabertini
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| Fri May 13, 2005 8:31 pm |
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I don't see any evidence that it's an abuse of power. If the judge really saw a constitutional conflict, he did exactly what he was supposed to do. Considering the wording of the fourteenth amendment, I don't think what he did was out of line. RM, you obviously oppose judicial activism. These judges aren't abusing their power, they're using it. Our constitution has been construed to give judges the power to overturn laws they find unconstitutional. When they do so, with adequate reason, they are within their authority.
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Republican_Man
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| Fri May 13, 2005 8:33 pm |
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| Zeke Zabertini wrote: | | I don't see any evidence that it's an abuse of power. If the judge really saw a constitutional conflict, he did exactly what he was supposed to do. Considering the wording of the fourteenth amendment, I don't think what he did was out of line. RM, you obviously oppose judicial activism. These judges aren't abusing their power, they're using it. Our constitution has been construed to give judges the power to overturn laws they find unconstitutional. When they do so, with adequate reason, they are within their authority. |
Actually, no. This is judicial activism at its best. It is an abuse of power. It really is. You know what would be good reading for you? Men in Black: How the Supreme Court is Destroying America, by Mark Levin, a constitutional scholar who has been in several fields of work. Check it out. You'll learn something 
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"Rights are only as good as the willingness of some to exercise responsibility for those rights- Fmr. Colorado Senate Pres. John Andrews
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Zeke Zabertini
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| Fri May 13, 2005 8:44 pm |
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He opposes judicial activism. Many people do. Many other people, some just as educated, support it. It's a matter of opinion. I happen to support judicial activism. They are, after all, a branch of the government, supposed to hold checks and balances just as the other two. I won't tell you you're wrong for opposing it, but I would recommend that you stop using such biased sources to support your opinions. After all, you must understand all sides of an argument to fully grasp your own opinion.
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Republican_Man
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| Fri May 13, 2005 9:18 pm |
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| Zeke Zabertini wrote: | | He opposes judicial activism. Many people do. Many other people, some just as educated, support it. It's a matter of opinion. I happen to support judicial activism. They are, after all, a branch of the government, supposed to hold checks and balances just as the other two. I won't tell you you're wrong for opposing it, but I would recommend that you stop using such biased sources to support your opinions. After all, you must understand all sides of an argument to fully grasp your own opinion. |
Truly educated people would NOT support judicial activism. It's unconstitutional, and goes AGAINST checks and balances. In Chapter Five entitled, "Justices in the Bedroom," he lays out a FULL, EXTREMELY researched and quote-filled, from as long ago as George Washington to as recent as Justice Scalia and Senator Rick Santorum and pro-gay marriage people, but argues it with constitutional facts, points, etc.
Now, what I just don't get is why when I form an opinion that disagrees with you, you accuse me of not fully researching other sides of an argument and grasping my own opinion. Well this just in: I HAVE listened to BOTH sides and HAVE grasped my own LOGICAL conclusion. You, of course, disagree with this opinion, and therefore demonize me.
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"Rights are only as good as the willingness of some to exercise responsibility for those rights- Fmr. Colorado Senate Pres. John Andrews
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Zeke Zabertini
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| Fri May 13, 2005 9:42 pm |
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You're no demon. You just have a different way of looking at things than I do. I only tell you to research when you tell me the same.
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Republican_Man
STV's Premier Conservative
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| Fri May 13, 2005 9:47 pm |
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| Zeke Zabertini wrote: | | You're no demon. You just have a different way of looking at things than I do. I only tell you to research when you tell me the same. |
Demonized doesn't necessarily mean saying that someone is a demon, but you insinuated that I have not formed my own opinion. After all, you said, "After all, you must understand all sides of an argument to fully grasp your own opinion." I have. This book just so happens to really have GOOD POINTS AND FACTS that support my opinion. I have not simply found a "biased source" to support my opinions. You just don't want to see that this is a valid argument, and that I have my own opinions.
Mark Levine's book really lays out historical information, much research, and is perhaps the most fact-filled book I have EVER READ (next to a textbook, of course.) But of course it's not valid, because it's a "biased source used to support my opinion."
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"Rights are only as good as the willingness of some to exercise responsibility for those rights- Fmr. Colorado Senate Pres. John Andrews
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Zeke Zabertini
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| Fri May 13, 2005 9:59 pm |
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I just acknowledged that you have your own opinions, and I never said your argument was not valid. I am simply questioning your source. There are facts to support both sides, but you have not presented facts. This is fine, but don't bring this book into the discussion in and of itself, using it to support your argument. Use its content if you will, but what you are doing now is saying "I believe this, and this book corroborates it." You know that not everybody knows the book, or will go out and read it before continuing the argument. I encourage you to cite from the book, not the book itself.
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Republican_Man
STV's Premier Conservative
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| Fri May 13, 2005 10:11 pm |
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| Zeke Zabertini wrote: | | I just acknowledged that you have your own opinions, and I never said your argument was not valid. I am simply questioning your source. There are facts to support both sides, but you have not presented facts. This is fine, but don't bring this book into the discussion in and of itself, using it to support your argument. Use its content if you will, but what you are doing now is saying "I believe this, and this book corroborates it." You know that not everybody knows the book, or will go out and read it before continuing the argument. I encourage you to cite from the book, not the book itself. |
Well, the problem is there's so much information in this chapter that I can't pick out what to post here.
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"Rights are only as good as the willingness of some to exercise responsibility for those rights- Fmr. Colorado Senate Pres. John Andrews
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Zeke Zabertini
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| Fri May 13, 2005 10:31 pm |
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I see. Well, while I may understand that, it doesn't help me understand your argument.
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Republican_Man
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| Fri May 13, 2005 10:34 pm |
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| Zeke Zabertini wrote: | | I see. Well, while I may understand that, it doesn't help me understand your argument. |
Alright, you're right. Tonight I'll skim through the chapter to find some good information 
But am I right in understanding that you said that you SUPPORT judicial activism and that it helps checks and balances? Could you please clarify your stance on this?
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"Rights are only as good as the willingness of some to exercise responsibility for those rights- Fmr. Colorado Senate Pres. John Andrews
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Zeke Zabertini
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| Fri May 13, 2005 10:58 pm |
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Well, I could probably go on for a while on it, but in the interest of brevity I think that it is an important role of judges to protect the people by stopping the other two branches of government from taking action beyond that which state and federal constitutions allow. Also, I support it in the less-pronounced but much more used capacity of judges applying old laws to new events and technologies while the legislatures battle over actual specific laws on such matters (internet law is an excellent example, in many cases, of judicial activism in the form of independently-made precedent).
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Republican_Man
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| Fri May 13, 2005 11:04 pm |
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| Zeke Zabertini wrote: | | Well, I could probably go on for a while on it, but in the interest of brevity I think that it is an important role of judges to protect the people by stopping the other two branches of government from taking action beyond that which state and federal constitutions allow. Also, I support it in the less-pronounced but much more used capacity of judges applying old laws to new events and technologies while the legislatures battle over actual specific laws on such matters (internet law is an excellent example, in many cases, of judicial activism in the form of independently-made precedent). |
So essentially you wouldn't mind a judicial branch more powerful than the other two? That's not what the constitution says.
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"Rights are only as good as the willingness of some to exercise responsibility for those rights- Fmr. Colorado Senate Pres. John Andrews
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Zeke Zabertini
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| Fri May 13, 2005 11:11 pm |
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I don't think the judicial branch is or was intended to be the most powerful branch of government. That said, I have a great deal of respect for the judiciary. I think that it is not out of line for the courts to judge laws as well as people, especially since they are the least motivated by shifting public opinion of the three branches. The judiciary is the most stable branch of government, the higher judges recieving appointments and not subject to election pressures. I agree that limits must be placed, but those limits already exist. I am not of the opinion that their power is overly extensive, though many people are.
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Republican_Man
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| Fri May 13, 2005 11:16 pm |
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| Zeke Zabertini wrote: | | I don't think the judicial branch is or was intended to be the most powerful branch of government. That said, I have a great deal of respect for the judiciary. I think that it is not out of line for the courts to judge laws as well as people, especially since they are the least motivated by shifting public opinion of the three branches. The judiciary is the most stable branch of government, the higher judges recieving appointments and not subject to election pressures. I agree that limits must be placed, but those limits already exist. I am not of the opinion that their power is overly extensive, though many people are. |
They truly are abusing their power, and that's not good. And stable they may be, they are NOT immune to political influence. As a matter of fact, they are GREATLY influenced by politics nowadays, despite the fact that they are not elected. But then again, that's the point. They are becoming the unelected legislators of this country. The Supreme Court should not have such great power. It is, after all, the only unelected branch of government.
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"Rights are only as good as the willingness of some to exercise responsibility for those rights- Fmr. Colorado Senate Pres. John Andrews
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Dirt
Exercise Boy
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| Sat May 14, 2005 10:48 am |
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I don't mind one bit that gay people get married, whyyyyyy exactly am I supposed to feel worried about this all? 
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Zeke Zabertini
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| Sat May 14, 2005 2:08 pm |
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Well RM, that's where we differ you see.
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Republican_Man
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| Sat May 14, 2005 2:46 pm |
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| Zeke Zabertini wrote: | | Well RM, that's where we differ you see. |
And I just don't get how you can't see it.
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"Rights are only as good as the willingness of some to exercise responsibility for those rights- Fmr. Colorado Senate Pres. John Andrews
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borgslayer
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| Sat May 14, 2005 9:57 pm |
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Alright im sick of all this talk about gay related things.
I wish the courts would just say "this is the law no same sex can marry, end of story."
Just tell the gay community they can't marry each other and refuse all of their attempts to get a law passed.
I feel no same sex should marry.
Man + Woman = YES
Man + Man = NO
Woman + Woman = NO
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Hitchhiker
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| Sat May 14, 2005 10:24 pm |
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| borgslayer wrote: |
I wish the courts would just say "this is the law no same sex can marry, end of story."
Just tell the gay community they can't marry each other and refuse all of their attempts to get a law passed.
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The law is an incredibly bloated, complicated mechanism, which probably started off as someone's bad idea of a joke. The whole reason this judge has overturned the ban is that he believes it is too broad--law has this penchant for technicalities. Quite painful.
Anyway, rather than turning this into another debate on gay marriage, I'd love to turn this into a debate on judge activism. We've really debated gay marriage many, many times, so I'd really rather not go around this argument again. It's not often the topic comes up.
I agree with Zeke when it comes to the amount of activism judges should employ. The judicial branch is not supposed to make new laws, just critically analyse ones that we have now. They are the people's most effective way of appealing--not through some duly elected representative who cares more about getting elected than their own constituents. Two sides bring an issue to court, and a judge makes a ruling. If they don't like the decision, they appeal, and another judge makes a ruling. There is certainly room for improvement in this system.
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Republican_Man
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| Sat May 14, 2005 10:27 pm |
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Judicial activism is wrong, and it's occuring WAY too often in this country, including in this situation. The Framers formed three separate but equal branches of government, and the courts are taking this power away from the other groups--are becoming too powerful. They are not the legislators of this country, and yet they are becoming so.
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"Rights are only as good as the willingness of some to exercise responsibility for those rights- Fmr. Colorado Senate Pres. John Andrews
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Zeke Zabertini
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| Sun May 15, 2005 12:13 pm |
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On the contrary RM, the branches were designed to be unequal, with the legislature as the most powerful, the executive second, and the judicial last. Through time though, that order has shifted. The executive branch has grown in power beyond that of the legislature, and with the rise of judicial activism the judiciary has come to equal the legislature (all in my eyes, of course). Over time, each branch gains power and loses it, and each has had and will have again their time in the spotlight. Our history has shown us that the political, social, and economic climates of our nation combined with current events can shift the balance of power. I do not think that this is necessarily a bad thing, so long as the balances system still exists.
It is interesting to note, and a point to RM's argument, that the Supreme Court was the body that first interpreted the constitution to allow them to overturn "unconstitutional" laws. This power, while not an enormous stretch (see Roe v. Wade for an enormous stretch), is not implicitly given to them or any court by the Constitution. Article III of the United States Constitution is highly recommended reading for those who wish to engage in this argument.
The courts, essentially, gave themselves the power to overturn laws. Now, while I may not have a problem with that, since I think that it is a natural extention of Constitution 3.2.1 "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution...", I do find it exhibits an alarming precedent. Power should not generally be conferred by oneself in a democratic society. On the same charge, however, must the executive branch be brought up on close examination. Implied powers of the constitution are a reality, like them or not, and all three branches have used them to their advantage at some point.
...So yeah, that's my 360 degree view on this.
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Republican_Man
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| Sun May 15, 2005 3:50 pm |
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The Constitution actually discusses the creation of "3 separate but equal branches of government." Therefore, you are incorrect in saying that. One's OPINION could be that the legislature is the most powerful (like I believe I thought during a class discussion last year), but it doesn't mean that it IS. And no, the judiciary does NOT have the right to high judicial activism. It's not what's supposed to happen. We are becoming a society run by judges, whom are becoming the unacknowledged legislators of this nation.
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"Rights are only as good as the willingness of some to exercise responsibility for those rights- Fmr. Colorado Senate Pres. John Andrews
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webtaz99
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| Sun May 15, 2005 6:22 pm |
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One man does not have right (even if the current screwed up system gives him the power) to overthrow a law that 70% of the population chose! 70%!
What ever became of the concept of democracy?
I'm so angry I can barely type!!!!!  
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"History is made at night! Character is who you are in the dark." (Lord John Whorfin)
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