Federal judge rules gay marriage ban unconstitutional

[norml]

Published Thursday
May 12, 2005

Federal judge rules gay marriage ban unconstitutional






U.S. District Judge Joseph Bataillon struck down Thursday Nebraska's constitutional provision prohibiting gay marriage or civil unions.

The constitutional amendment, known as Initiative 416, passed in 2000 with 70 percent of the vote. It prevents homosexuals who work for the state or the University of Nebraska system from sharing health insurance and other benefits with their partners.

A group of lesbian and gay couples sued the state of Nebraska, contending the act barred "lesbian, gay and bisexual people from using the ordinary political process to seek important legal protections that all other Nebraskans already have."

Forty states have so-called "Defense of Marriage'' laws, but Nebraska's ban is the only one that explicitly prohibits same-sex couples from enjoying many of the legal protections that heterosexual couples enjoy.



snip



http://www.omaha.com/index.php?u_pg=1638&u_sid=1409755



http://news.google.com/news?q=nebraska+judge+marriage&hl=en&lr=&tab=wn&ie=UTF-8&scoring=d

[tedoll78]

1. mwa-ha-ha-ha-ha!

Someone asked me the other day why I, as a homosexual, vote Democratic in almost every election. I answered "judicial nominees."

Ladies and gentlemen, Exhibit 2473.

[knowbody0]

2. rah rah rah

this is sweet news

[Mz Pip]

46. Did this person somehow

assume you should be voting Republican because you're gay? What have the Republicans done for the advancement of gay rights?

Plenty of people vote their own self interests. Why should gay people be any different?

Mz Pip
:dem:

[northzax]

76. I think the theory is

that since we all know that gay people are rich and simply party all day, that they should vote with their wallets and go GOP! right?

Either that or the repressive nature of the GOP regime will drive more men into having furtive underground sex in parking lots, easy marks for the Gay men who do nothing but work on new converts. It's kinda like the Mormom Missionaries, don't all gays spend at least two years dedicated to creating new converts?

[da_chimperor]

3. Here's a working LINK:

http://www.omaha.com/index.php?u_pg=1638&u_sid=1409755

[norml]

10. Thanks! I was waiting for it to break somewhere.

I've edited my OP to use your link.

[da_chimperor]

13. No problem, I enjoy being helpful.

:7

[norml]

26. I'm amazed that this story hasn't broken yet.

So far it hasn't gotten beyond Omaha, and DU.

[dkofos]

4. Of course it is

But to the fundies the bible trumps the Constitution.

[Nothing Without Hope]

48. Not the bible, but their INTERPRETATION of the bible. They cherry-pick

isolated qootes to support what they want to push, as though it is unambiguous and never inappropriate in a modern culture. IIn fact, there is a long list of biblical passages that, if enforced, would be crimes today. Like selling your daughter as a slave, like taking the citizens of adjacent countries as slaves, like a lot of other things the extremist fundies ignore while digging up the bits they want.

You can cherry-pick biblical verses to support or oppose just about anything, if you're patient enough to find them.

Even more glaring is the way they interpret Jesus' teachings, twisting them into hate and intolerance and greed.

I am not a Christian, nor do I consider the bible "divinely inspired," but if it is truly READ instead of cherry-picked like a ragheap, their arguments rest on nothing.

[hippiegranny]

5. yay!

another small win for the good guys! We'll take 'em where we get 'em!

[triguy46]

6. Oh, this isn't over yet.

Just toss another log on the judicial nominees fire. I can expect that this judge will begin to feel the wrath of the fundies, say, in about, well, right about immediately.

[lies and propaganda]

7. Beautiful!

Two birds with one stone, Nebraska lets far more sick shit go on everyday, in their own backyard. So fuck em! Victory is Ours!

[Rainscents]

8. Huraaaaaay!!!

Now eat shit, you basters!!! Everyone deserve and have right to be whatever they want... I am so happy!!!:bounce:

[Teaser]

9. This oughta rev up the loonies.

watch.

[norml]

33. Here's what the FWeepers on Fwee Wepubwik have to say.

http://www.freerepublic.com/focus/f-news/1401997/posts

[hecate77]

35. I'm sorry. I peeked. Now I feel dirty. Ugh, what a horrible place that

must be to hang out. So full of hate and stupidity. <Shudder>. Got any of that soap extra from the DeLay thing tonight?

At least my computer wasn't captured and interned over there. It does look like it blew a few capacitors though.....

[Maat]

38. YOU caused me to laugh so hard I just busted a gut!

And right after a medical examination in which I was given a clean bill of health! Now I gotta go back to the doctor (busted gut).

This recent law graduate just laughed so hared when I read a comment below, 'We have to get rid of judicial review!' Ummmm ... this is obviously not a person that took a constitutional law class.

How do I say this? Ummm, Dear (to the Freepr), judicial review is part of the system. The Judicial Branch is co-equal with the other two branches of government. When it comes to fundamental rights, each citizen (and legal resident) has a right to judicial review. And the Supreme Court is not going to let anyone tell it what to review, if it is constitutionally-provided for, as with fundamental rights (Please see "Marbury v. Madison.").

There is talk of court-stripping, but this will never go far, trust me. The Supreme Court will never go along with Congress getting rid of its help (the lower courts). You will see a hue and cry the likes you've never seen before.

[YankeyMCC]

47. What limited minds

"The people of Nebraska voted for this!"

And if they voted to hang stupid people by their toes until custard came out their noses would that be ok too?

Nitwits!

[Massacure]

49. hahaha, they are quoting the federalist papers?

I thought republicans hated big government??? What a bunch of damn hypocrites.

[renaissanceguy]

61. That's exactly what they are.

I'm amused at how that mayor was outted after being such a big homophobe. Goes to show you these lunatics have serious issues.


http://www.cafepress.com/liberalissues/611015

[CTLawGuy]

72. wow, freepers are dumb!

now they are talking about abolishing Judicial review???

Do they not understand how our government works? Also, aren't these guys the people that don't trust the government?


edit: now they are confused about how a court can rule a constitutional amendment unconstitutional. Obviously they have not heard that state and federal constitutions are different and the federal one overrides the state one.

[Ilsa]

11. I guess the judge had better hire some guards.

Some wacko like Eric Rudolph is probably a out at firing range checking the sight on his favorite rifle.

[goclark]

12. Yes!

[rockedthevoteinMA]

14. Congrats Nebraska!

:applause:

[arcane1]

15. "passed in 2000 with 70 percent of the vote"

WTF is wrong with people????? :eyes:

[LostinVA]

17. A better question: why are so many people so mean-spirited???

[FizzFuzz]

37. because the bible tells them it is good

keep your eyes open for anyone who is an abomination in sight of Gawwd, who would like to see them smoted alot.

[billyoc]

25. It's *Nebraska*,

the population *is* 70. :evilgrin:

[norml]

27. Don't blame me. I voted against it.

I'm one of the 30%. Though I've been thinking I should move to a bluer swing State, where my vote would count for more.

[billyoc]

34. definitely not blaming

we've got du-ers from all 50 states. :hi:

[renaissanceguy]

40. Glad to see there are people in red states

fighting for us.


http://www.cafepress.com/liberalissues.22307368

[wicket]

16. YAY!!!!

:kick:

[ladeuxiemevoiture]

18. Hooray!

:hi:

On the flip side, how many days until another press conference from one of the Repukes denouncing "activist judges"? :eyes:

[Eloriel]

19. Beautiful, beautiful, beautiful n/t

[renaissanceguy]

20. Thank you, judge!!!!!

Damn straight our civil rights aren't up to the votes of the public.


http://www.cafepress.com/liberalissues.21518002

[proud patriot]

21. of course it is

:thumbsup:

[Roland99]

22. Oh the Fristians are REALLY riled up now!

[norml]

53. Judge's Ruling Reveals the Sham, Says Bauer

Judge's Ruling Reveals the Sham, Says Bauer; Marriage Is in the Crosshairs

Distribution Source : U.S. Newswire

Date : Thursday - May 12, 2005



To: National Desk

Contact: Kristi Hamrick of of American Values, 571-244-6324 (571 same as 703)

WASHINGTON, May 12 /U.S. Newswire/ -- Former Presidential candidate Gary Bauer said that the decision late Thursday by a federal judge to strike down the Nebraska marriage amendment was "evidence that ultimately only a federal constitutional amendment will protect normal, traditional marriage. Liberal federal judges have signaled that traditional marriage is in their crosshairs and those courts seem intent on ignoring the will of the American people."

The president of American Values continued: "I am saddened and outraged that another federal judge has ignored the will of the American people to align with gay rights groups and substitute personal liberal philosophies for the clear, lawful policies chosen by the electorate. Despite the overwhelming number of Nebraskans who expressed their support for marriage as a sacred institution between one man and one woman, a single judge decided he knew better.





"This illustrates clearly that marriage is not a state's rights issue. It is proof that those who say it can be handled state by state are categorically wrong because they are ignoring the reality that federal judges have signaled unequivocally that they will not allow the people to decide for themselves. The time is now for the President to lend the full weight and authority of his office toward taking all the steps necessary to provide constitutional protection of our must fundamental union, marriage."




snip




http://www.usnewswire.com/

-0-

/© 2005 U.S. Newswire 202-347-2770/





http://press.arrivenet.com/pol/article.php/636853.html

[norml]

55. Dobson Decries Nebraska Marriage Ruling

Dobson Decries Nebraska Marriage Ruling; Marriage Protection Amendment More Necessary Now Than Ever

Distribution Source : U.S. Newswire

Date : Thursday - May 12, 2005



To: National Desk

Contact: Christopher Norfleet of Focus on the Family Action, 719-548-4570 or [e-mail], Web: http://www.focusaction.org

COLORADO SPRINGS, Colo., May 12 /U.S. Newswire/ –– Focus on the Family Action Chairman Dr. James C. Dobson today released the following statement in response to the Federal District Court of Nebraska striking down that state's Defense of Marriage Amendment (DOMA), which defines marriage as the union of one man and one woman and prohibits the legal recognition of same-sex relationships:





"Today's ruling marks the first time a marriage-protection amendment has been overthrown by the whim of a federal judicial tyrant. In the guise of 'equal protection,' Judge Joseph Bataillon has single-handedly rejected the will of 70 percent of Nebraska's voters, who amended their state constitution in 2000 to protect the traditional definition of marriage. But to argue that supporters of same-sex marriage are disenfranchised by the amendment is ludicrous; they have every right to undertake the amendment process themselves and get a different measure passed – that's the way democracy is designed to work.

"Last year when the Marriage Protection Amendment was being debated in the U.S. Senate, some senators – including Nebraska's own Ben Nelson – used the excuse that the MPA was 'not needed,' and that the crucial matters MPA addresses could be handled at the state level. Apparently not. Now we have dramatic evidence that this legal fig leaf is easily stripped away by judicial activism.

"I call on the members of Congress to act without delay to send a marriage-protection amendment to the states for ratification – our government 'of the people, by the people, for the people' demands nothing less. Either marriage will be enshrined in the U.S. Constitution, or we will see an untenable patchwork of marriage definitions, forever subject to the federal judiciary."

---

James C. Dobson, Ph.D. is a psychologist, author, radio broadcaster and founder of Focus on the Family Action. Founded in 2004, Focus on the Family Action is an action organization dedicated to the preservation of the moral and cultural values upon which our nation was founded.





snip





http://www.usnewswire.com/

-0-

/© 2005 U.S. Newswire 202-347-2770/









http://press.arrivenet.com/pol/article.php/636866.html

[Roland99]

58. Oh fuck him with a rusty railroad tie.

Karma's a bitch and these people have a world of hurt coming down on their self-righteous heads!

[renaissanceguy]

62. Blah blah blah

A federal amendment will never pass. Massachusetts equal marriages are reaching a year now, and I think a lot of the public has seen that, well, hell hasn't frozen over.


http://www.cafepress.com/liberalissues/611015

[Occulus]

65. Mr, Dobson, please fuck off and die.

Thank you.

[soleft]

23. But Nebraska's no where near the North East

How did this happen?

:shrug:

[Jacobin]

24. Oh, boy. Here we go with the judge bashing again

Will prolly slow down Delay's little money laundering trial while all good Murkins are apalled at all them there judicial activists

[sam sarrha]

28. there they go again.. judges interperting the constitution.. against the

Dictated preferences of our DickTatter pResident..

[norml]

29. Another Link: Same-Sex Marriage Ruling Amendment ruled unconstitutional

Same-Sex Marriage Ruling
Amendment ruled unconstitutional


A federal judge has declared Nebraska's one-of-a-kind ban on same-sex marriages unconstitutional.

Nebraska voters approved a constitutional amendment, known as Initiative 416, in 2000 with 70 percent of the vote. It prevents homosexuals who work for the state or the University of Nebraska system from sharing health insurance and other benefits with their partners.

In a 42-page ruling, U.S. District Judge Joseph Joseph Bataillon said Thursday that the ban "imposes significant burdens on both the expressive and intimate associational rights" of gays and lesbians "and creates a significant barrier to the plaintiffs' right to petition or to participate in the political process."

"Although not central to disposition of this case, the court finds" the ban "burdens rights of intimate association," he said.



snip



http://www.wowt.com/news/headlines/1573952.html

[SharonRB]

30. I was just getting ready to post this

The way Michigan's new law is worded, by the way, vaguely prohibits these legal protections as well. I can't wait for someone to bring a lawsuit here. This is a great precedent.

[Zhade]

31. Woohoo!

NT!

[karlrschneider]

32. Uh-oh...the judge has a "French" name...

:eyes:

[Democat]

36. Remember, the Republicans know how to turn defeat into victory

We need to understand this or they will use these type of court decisions to destroy us in the next election, like they've been doing for the last few.

This type of thing motivates the right wing base - we need to find a way to motivate our base, if we even have one anymore.

[renaissanceguy]

39. This is why we need our Dem officials

to come out FOR gay rights, instead of sitting on the fence and staying quiet. We need to meet force with force, because right now, all we have are the courts.

[Erika]

43. GOP knows how to steal elections like they've

done for the last few.

This is a good court decision. It was over turned because it did not provide equal protection for all citizens as guaranteed by the constitution.

[liberalpragmatist]

41. Honestly - I think this could be bad

Oh I hope I'm wrong. But if this ruling stands, it will make passage of a federal constitutional amendment MUCH MORE likely. And that's the last thing ANY of us want.

Even if it doesn't stand (and I don't think it will - judges like to play it safe), I fear it will only make the case for a federal amendment stronger among people on the right.

[ladeuxiemevoiture]

42. Think about what you are saying, please!

That the reversal of an assault on the civil rights of gays and lesbians is "bad". Even if you mean 'tactically', is there a universe where such a turn of events can be characterized as "bad"?

Don't let them exploit these rulings. When civil rights expand or when laws which diminish them are thrown out, celebrate! Be happy! Show people that you approve and be a living example.

Canadian homophobes kept saying "just you wait 'til the backlash comes." Guess what? It never happened.

[liberalpragmatist]

45. Okay, I'm sorry, "bad" was a poor choice of words

Maybe I should have said - "I fear this could be a pyrrhic victory" or something like that.

I think the ruling on its own is very good. And I hope that one day a ruling like this from the Supreme Court knocks down all those state constitutional amendments. But I do worry that in the short-term, a ruling like this is going to make passage of a federal constitutional amendment much more likely.

Comparisons to Canada fall apart b/c the U.S. is not Canada. We have a much more conservative, downright reactionary population. The gay marriage iniatives throughout were largely the result of the Massachusettes Supreme Court decision. Backlashes do occur in the U.S., and I'm wary of them.

So pardon me if I'm worried. I hope I'm proven wrong.

[ladeuxiemevoiture]

57. No, it's okay, but I do think your worry is misplaced.

:hi:

[Erika]

44. Most citizens are getting sick of the minority fanatics

picking on the gays/lesbians. As a country, we have far more real issues to deal with. Nebraska violated the equal protection of rights under the U.S. Constitution when they dreamed us this amendment.

[Terran]

73. No it won't

But if this ruling stands, it will make passage of a federal constitutional amendment MUCH MORE likely.

The forces who want the federal amendment need a two-thirds majority in the Senate to even get the ball rolling, and they are a long long way from getting that. The amendment is dead in the water as long as that situation stays the same.

[BamaLefty]

50. Great n/t

[progressoid]

51. Uh Oh. I feel like getting a divorce now.

Them homersechials is weakening my holy union.

[Jokinomx]

52. Thank God for Judges With Good Sense....:-) n/t

[Placebo]

54. F'N ACTIVIST JUDGES! AHH!!!

:crazy:

[VegasWolf]

56. This is ABSURD! A bisexual has to be right at least 50% of the time!n/t

[geek tragedy]

59. A temporary victory for the good guys.

The outcome is admirable, but the legal justification is flimsy.

[renaissanceguy]

60. It's a stand for American principles.

The courts were put in place to "check" the tyrrany of the majority. I'll bet pretty soon the average person will be sick of hearing about gay marriage, and will be more concerned about feeding their children or the high gas prices.


http://www.cafepress.com/liberalissues/611015

[geek tragedy]

63. Oh, I absolutely think that gay marriage should be the law of the land.

It's just that the reasoning he provided is really much more the stuff of law review articles than an accurate take on what the constitution requires.

I do think that the courts are the wrong place to fight this--it is a question of fighting for hearts and minds of voters.

[Terran]

64. What the Constitution requires?

Equal protection under the law (14th Amendment). I believe that's what the judge was in effect saying that the second part of the law was denying, to a potentially wide variety of people, not just homosexuals. The Texas sodomy law was overturned on that basis by the SCOTUS already. In theory, that case laid the basis for all such laws discriminating against homosexuals to be overturned. This case will probably end up before them, and they will have no choice but to uphold the federal judge's decision.

[geek tragedy]

66. I can almost guarantee you that the decision will be reversed.

Nothing is quite 100%, but this decision is very unlikely to survive appeal.

The theory of the decision is that the Nebraska constitution unfairly denies certain folks the right to petition the legislature to get marriage rights. An interesting theory, but not one that's going to work.

[ladeuxiemevoiture]

68. Maybe, maybe not - but I understand it gets appealed to the 9th Circuit,

which is a liberal court?

[geek tragedy]

74. Nebraska is in the 8th Circuit, not the 9th eom

[Terran]

70. Did you actually read the article?

The theory of the decision is that the Nebraska constitution unfairly denies certain folks the right to petition the legislature to get marriage rights. An interesting theory, but not one that's going to work.

That statement is incorect. See below (from the article):

(The Nebraska law) also prohibited the state from recognizing the "uniting of two persons of the same sex in a civil union, domestic partnership or other similar same-sex relationship."

It was the second prohibition that Bataillon targeted in his ruling.

He said the ban was so broadly written that it could place restrictions on roommates, tenants, foster parents and people in other living arrangements.

Bataillon also said the ban infringed upon gays' ability to petition the government for legislation and rights besides marriage rights.

Bataillon said the ban prohibited gay and lesbians from seeking other laws that would protect a partner's right to hospital visits or permit same-sex couples to adopt children.

And you're probably right, it will be overturned on appeal. And as I already said, it will be taken to the SCOTUS, who will have little choice but uphold the original decision, based on their earlier decision in the Texas sodomy law case.

[geek tragedy]

75. I read the decision itself--press articles are almost always deceptive

and written by non-lawyers.

The amendment doesn't cover roommates, etc. One could possibly interpret it that way, but what happens is that courts will interpret an amendment like that so that it doesn't present such constitutional issues.

Constitutional amendments ALWAYS prevent someone from petitioning the legislature. That argument isn't going to fly either.

Decriminalizing sex acts between consenting adults is a privacy issue, as opposed to an equal protection issue.

[Terran]

78. Hmmm, okay

Decriminalizing sex acts between consenting adults is a privacy issue, as opposed to an equal protection issue.

The Supreme Court disagreed. Btw, where in the US Const. does it say anything about privacy?

[geek tragedy]

79. Which Supreme Court are you talking about?

http://straylight.law.cornell.edu/supct/html/02-102.ZO.html

<snip>
We granted certiorari, 537 U.S. 1044 (2002), to consider three questions:

“1. Whether Petitioners’ criminal convictions under the Texas “Homosexual Conduct” law–which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples–violate the Fourteenth Amendment guarantee of equal protection of laws?

“2. Whether Petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

“3. Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled?” Pet. for Cert. i.

We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court’s holding in Bowers.
There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U.S. 479 (1965).

In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485.

After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own:

“It is true that in Griswold the right of privacy in question inhered in the marital relationship… . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Id., at 453.
<snip>

The case was decided on Due Process/Privacy grounds, not Equal Protection.

[davidinalameda]

67. maybe there's hope yet

thank you Judge Bataillon for doing the right thing in ruling for justice and freedom

[MadisonProgressive]

69. MSNBC has it now

http://www.msnbc.msn.com/id/7834478/

[speedingbullet]

71. Huskerland

Greetings from another 30%-er. I would also point out that one of our Federal Judges (Kopf) gave a judicial beat-down to the "partial birth abortion ban" a few years back.

[northzax]

77. suprising, isn't it

how every independant evaluation of these laws strikes them down? it's like legislating bias is against what the Founding Fathers would have wanted or something.