The overturning of Nebraska’s marriage amendment at the hands of a federal judge is yet another painful reminder of why we need a Federal Marriage Amendment—now. The issue is simple. Either we will define for the judges what marriage means, or the judges will decide for us. U.S. District Judge Joseph Bataillon of Omaha struck down the Nebraska measure yesterday, even though the amendment to the state’s constitution went through the appropriate legal channels and was approved by a 70-percent vote. The will of the people of Nebraska was subverted by a single federal judge, whose convoluted logic defies explanation. Judge Bataillon ‘found’ that the Nebraska amendment violated the constitutional rights of gays and lesbians by preventing access to the legislative process in order to push for same-sex marriage. By that logic, the rights of any group can be seen to be violated by virtually any constitutional provision, since no legislature can safely consider a measure that is constitutionally forbidden. With reference to Section 29 of the Nebraska State Constitution (the portion that includes the marriage amendment) the judge stated: “Several members of plaintiff organizations have submitted affidavits showing that Section 29 has inhibited them from lobbying for extension of rights to gay and lesbian couples and has interfered with their ability to provide for themselves and their families.” Of course, preventing any successful move toward legalization of same-sex marriage was the whole point of the constitutional amendment in the first place. In another section of his ruling, Judge Bataillon argues that the amendment “burdens rights of intimate association.” In an extreme leap of judicial logic, the judge claimed that Section 29 would pose a legal danger to other forms of association. Look closely at this section of his ruling: “Marriage cannot be identified or defined solely by sexual, procreational or financial aspects. Many social or associational arrangements run the risk of running afoul of the broad prohibitions of Section 29. Among the threatened relationships would be those of roommates, co-tenants, foster parents, and related people who share living arrangements, expenses, custody of children, or ownership of property. Many of these associational relationships are constitutionally protected at some point along the spectrum from the most hallowed and intimate to the most trivial. Without determining where on this spectrum a potential domestic partnership, civil union or other “same-sex” relationship would fall, let it suffice to say that associations or living arrangements affected by Section 29 are closer to the end of the continuum that deserve Constitutional protection.” The associational rights of roommates would be violated by a ban on same-sex marriages? The judge’s ruling will be appealed, and this case–along with similar cases–will inevitably arrive one day at the U.S. Supreme Court. This is the first time a federal judge has struck down a state constitutional amendment intended to prevent same-sex marriage. It is not likely to be the last. Judge Bataillon has provided us with a new definition of judicial activism.
R. Albert Mohler Jr.
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