Nebraska Marriage Ruling -- Judicial Activism at Its Best, Say Family Advocates

by Jody Brown and Bill Fancher
May 13, 2005

(AgapePress) - With an almost unanimous voice, family advocacy groups across the U.S. are decrying Thursday's decision by a federal judge in Nebraska that negates the marriage protection amendment that was approved by voters in the Cornhusker State almost five years ago. The ruling has reinvigorated those groups' calls for the necessity for a marriage amendment to the U.S. Constitution -- and given immediacy to their push for an end to the months-long Senate filibuster against conservative judicial nominees.

A federal judge has struck down Nebraska's ban on homosexual "marriage." Judge Joseph Bataillon says the constitutional amendment, which defines marriage as the union of a man and a woman, violates the rights of same-sex couples, foster parents, adopted children and people in a host of other living arrangements. Despite the fact that 70 percent of Nebraska voters approved the marriage protection amendment in November 2000, Bataillon's decision effectively nullifies the votes of 477,000 Nebraskans -- and awards the election results to the 203,000 who voted against the measure.

In his ruling, Bataillon states that, as written and applied, the ban "imposes significant burdens on both the expressive and intimate associational rights of plaintiffs' members" -- and that the language of the amendment "potentially prohibits or at least inhibits people, regardless of sexual preference, from entering into numerous relationships or living arrangements that could be interpreted as a same-sex relationship 'similar to' marriage."

The judge did not stop there. "Section 29 also interferes with individuals' abilities or incentives to join together in pursuit of a common endeavor ... [and] erects significant burdens on the promotion of, or lobbying for, any legislative or governmental action that would eventually extend rights or recognition to gays and lesbians ...."

Furthermore, Bataillon asserts that the "intent and purpose of the amendment is based on animus against [homosexuals]."

Nebraska is one of only 40 states that has Defense of Marriage law on the books. That state's statute is unique, however, in that it also prevents homosexuals who work for the state or the University of Nebraska system from sharing health insurance and other benefits with their partners. That may be one reason why Bataillon wrote that the ban "goes far beyond merely defining marriage as between a man and a woman." In fact, the judge stated the amendment "was designed against the class it affects, making it status-based."

Attorney Brian Fahling of the Center for Law & Policy minces no words in his reaction to the Nebraska judge's words. "Not only is Judge Bataillon's assertion [that the amendment demonstrates animus toward homosexuals] demonstrably wrong, it is saturated with an all-too-familiar judicial contempt and antipathy for the moral norms of our culture," he says.

"We are no longer permitted to govern ourselves in the most fundamental areas of life. Instead, we are called names by un-elected judges who deconstruct our written constitution and our society with all the subtlety of a wrecking ball."

Could a 'Whim' Become a 'Catalyst'?
Dr. James Dobson of Focus on the Family calls the ruling the "whim of a federal judicial tyrant." He says it is "ludicrous" for Bataillon to argue that advocates of homosexual marriage are disenfranchised by the amendment.

"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," Dobson says in a press statement. But Bataillon, he says, has done what pro-homosexual advocates could not do: overturn the will of 70 percent of Nebraska's voters. The FOTF founder says the actions by the federal judge are "dramatic evidence" that state's rights -- an argument put forth by liberals who oppose a federal marriage amendment -- are easily trumped by judicial activism at the federal level.

American Family Association founder and chairman Don Wildmon says he saw it coming. "The action of Judge Bataillon is exactly the situation we have been warning the public about," he says. "One federal activist judge has struck down the law passed with a 70-percent margin. This ruling shows the need for a national constitutional ban on homosexual marriage, and the need to stop the liberal Democrats from enforcing their litmus test on judicial nominees through filibustering."

Jan LaRue of Concerned Women for America echoes that concern. "Can it get more obvious that it's past time for the Senate to stop fiddling around and confirm some judges who don't think the Constitution is their personal Play Dough," she wonders. "The Democrat obstructionists clinging desperately to the filibuster think judges like Bataillon, who make a mockery of the Constitution, are 'mainstream' -- and judges like Priscilla Owen and Janice Rogers Brown, who respect and defer to it, are 'extreme.'"

Robert Knight of the Culture and Family Institute agrees with LaRue. "Until we get judges who understand that their job in a government of balanced power is to apply the law, not trash it, we will see more judicial tyranny," he offers. Nebraska's voters, he says, have been "slapped right across the face by this arrogant federal judge."

Perhaps Congress will take notice of Judge Bataillon's activist ruling and respond by calling for a national referendum on a federal marriage amendment. At least that is what the president of Liberty Council is hoping will happen.

"This decision is the catalyst the U.S. Congress was looking for as an example of why this country needs a federal marriage amendment," says Mat Staver. "Since some of our judges do not understand common sense, it's time for the people to spell it out in our United States Constitution -- marriage is the union of only one man and one woman."

No Surprise
A spokesman for the Massachusetts Coalition for Marriage says he was not surprised at all by the ruling coming out of Nebraska. After all, he points out, that is how same-sex marriage became legal in his state.

"It just continues to drive home the point that we need a federal amendment to settle this once and for all," says Kris Mineau, "otherwise this is going to be a [state-to-state] leap-frog event from this cancer that started in Massachusetts."

Mineau says that "cancer" could very well spread across the country through the courts -- "definitely not by the people," he clarifies, "because whenever the people get an opportunity to vote, it's 70 percent or more who vote for traditional marriage between one man and one woman."