• Court decisions •
May 13, 2005
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.
May 12, 2005
U.S. Dictrict Court Judge Joseph Bataillon struck down Nebraska’s constitutional amendment banning same-sex marriage. Known as Initiative 416, the amendment passed in 2000 with 70-percent of the vote. The measure also prohibits civil unions. The judge’s decision appears to be based in an absolutely bizarre logic–that the constitutional amendment prevents homosexuals from going to the Nebraska legislature for legalization of same-sex unions and similar benefits. By defining equal protection in terms of equal access to the legislature–without regard to the right of the people to amend their state constitution–this judge apears to be following the lead of the U.S. Supreme Court in its Romer v. Evans decision. Once again, the need for a Federal Marriage Amendment has been made painfully clear. More later. For news coverage, see this story from The Associated Press.
April 25, 2005
Observers of the U.S. Supreme Court have noted a disturbing pattern in recent court decisions: Some justices are citing foreign court decisions in framing their own interpretation of the U.S. Constitution. This amounts to an internationalizing of the United States Constitution and raises disturbing and difficult questions about the future of the U.S. Supreme Court and its stewardship of our nation’s most fundamental document.
March 17, 2005
Well, it’s happened again. On Monday, San Francisco County Superior Court Judge Richard Kramer ruled that withholding marriage licenses from same-sex couples violates California’s constitution. His decision, which is on stay pending appeal, threatens to put the nation’s most populous state next in line for court-mandated same-sex marriage.
March 15, 2005
The dust continues to settle after the U.S. Supreme Court’s March 1 ruling that the execution of persons who committed capital crimes while under the age of 18 is unconstitutional. In one sense, the decision came as no great surprise, given the activist nature of a majority of Justices currently sitting on the Court. Nevertheless, the actual text of the majority opinion in this case is more problematic than the decision itself, and sets a series of dangerous precedents for future activism by the nation’s High Court.
January 18, 2005
Observers of the U.S. Supreme Court have noted a disturbing pattern in recent court decisions: Some justices are citing foreign court decisions in framing their own interpretation of the U.S. Constitution. This amounts to an internationalizing of the United States Constitution and raises disturbing and difficult questions about the future of the U.S. Supreme Court and its stewardship of our nation’s most fundamental document. Writing just last year, former judge Robert H. Bork issued an eloquent warning that America’s rule of law was being subverted by a rule of judges. Furthermore, those judges are increasingly looking to foreign court decisions as grounds for pushing what amounts to a cultural revolution at the expense of the U.S. Constitution.
December 15, 2003
“Ladies and gentlemen, we got him.” With those words, L. Paul Bremer III, America’s top civilian official in Iraq, opened a new chapter in the history of that troubled nation. The capture of Saddam Hussein finally allows the possibility that Operation Iraqi Freedom will mean more than a military victory. A legitimate trial of Saddam Hussein would produce something even more significant than military victory–a moral victory.