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My personal musings about anything that gets on my radar screen--heavily dominated by politics.

2005-05-13

What Is Wrong With Nebraska?

Silly question from a CU alum, right? But there is a serious side to this.

First, some numbers from the 2004 election:

President:
Bush 66%, Kerry 33%

Congress:
Fortenberry (R) 54%, Connealy (D) 43%
Terry (R) 61%, Thompson (D) 36%
Osborne (R) 87%, Anderson (D)11%

Just looking at raw numbers, this looks like a pretty safe GOP state. Yet, in 2000 it elected Ben Nelson (D) to the Senate, and then followed that in 2002 by electing Chuck Hagel (R). And then there's this:

A federal judge on Thursday struck down Nebraska's ban on same-sex marriage, saying the measure interfered not only with the rights of gay couples but also with those of foster parents, adopted children and people in a variety of other living arrangements.

Okay, we've seen this before, haven't we? A federal judge assers that there's a right to ease-of-contractual arrangement somewhere in the state Constitution.

Where, exactly, in the state Constitution, you might ask?

The amendment to the state's Constitution, which defined marriage as a union between a man and a woman, was passed overwhelmingly by the voters in November 2000.

I'm sorry . . . come again? The judge ruled that a Constitutional Amendment, approved by the voters, was itself UNCONSTITUTIONAL??? How can that be?

The judge in the Nebraska case, Joseph F. Bataillon of Federal District Court, said the ban "imposes significant burdens on both the expressive and intimate associational rights" of gay men and lesbians "and creates a significant barrier to the plaintiffs' right to petition or to participate in the political process."

Judge Bataillon said the ban went "far beyond merely defining marriage as between a man and a woman." He said the "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."

But he doesn't, apparently, explain how a Constitution can be UnConstitutional. If this is not a prime example of a judge finding himself above any other powers-- executive, legislative, or popular--then I don't know what is. Surely, James Madison and Thomas Jefferson, who warned of a judicial "Oligarchy", are turning over in their graves at this.

Think we don't need a Defense Of Marriage Amendment? Try again. I, for one, would prefer that issues like this stayed out of the federal Constitution. But if judges can take it upon themselves to ignore the Constitution's enumerated powers (which give the right to decide licensing to the LEGISLATURES) and their own states' Constitution's clear instructions, then some power is going to be required to limit the judiciary's ability to create law out of whole cloth.
Posted by: Michael / 5/13/2005 01:39:00 PM

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