One Judge Overrules the People of Nebraska     5/17/2005
By Mario Diaz

State’s marriage amendment declared unconstitutional.

With the stroke of a pen on May 12, 2005, one judge overruled the will of almost half a million voters in Nebraska, declaring unconstitutional an amendment that defines marriage between a man and a woman. The amendment also prohibits the state from recognizing or creating civil unions, domestic partnerships or other same-sex relationships.

In an effort to protect marriage, 70 percent of Nebraska voters in November 2000 approved the amendment.

In Citizens for Equal Protection v. Brunin, Judge Joseph F. Bataillon, U.S. District Judge for the District of Nebraska, held that the amendment violates the First and Fourteenth amendments and declared it a bill of attainder in violation of Article 1, section 10, of the U.S. Constitution. This provision prohibits Congress from enacting “a law that legislatively determines guilt and inflicts punishment upon an identifiable [and named] individual without provision of the protections of a judicial trial.”

Citizens for Equal Protection, Nebraska Advocates for Justice and Equality, and the ACLU of Nebraska argued that efforts made to pass legislation in favor of rights for same-sex couples had been ineffective as a result of the passage of the Nebraska Marriage Amendment. This, they said, violates their constitutional rights. The court agreed, even though the advocacy groups gave no evidence of the constitutional right affected.

The court said the amendment “significantly chills the incentive to associate and to organize” in promotion of same-sex relations. “Proponents of legislation that would extend rights or benefits to same-sex relationships are discouraged and/or dissuaded from enthusiastic advocacy of such goals,” said Judge Bataillon.

However, observers have seen the exact opposite. Homosexual, lesbian, transgender, transsexual and many like-minded groups rise up everyday, and their political advocacy seems to be growing by the minute. The court failed to see that the advocacy and increased attacks on marriage coming from these groups prompted the need for this amendment—let alone this lawsuit itself, brought by three advocacy groups.

Most important, nothing in the amendment prohibits or even discourages advocacy groups from lobbying elected officials or persuading fellow citizens of their views. The amendment says: “[O]nly marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership or other similar same-sex relationship shall not be valid or recognized in Nebraska.”

But Judge Bataillon goes even further, saying it is just too hard for same-sex relation proponents to get their legislation enacted. He said the amendment “creates a barrier to participation in the political process that no minority population is ever likely to surmount.”

Apparently the people of Nebraska’s participation in the political process to approve this amendment – a process in which same-sex advocates participated in opposition – has no value in the eyes of the court.

By this logic, groups who advocate for the rights of aliens, for example, could challenge Clause 5, Section 1 of Article II of the U.S. Constitution, which says: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” Imagine a group of aliens who want to change this in order to elect Gov. Arnold Schwarzenegger as the next U.S. President.

Instead of persuading the American people to vote to change this constitutional provision, advocacy groups can ask the court to throw it out because it would be too hard to require them to go through the amendment process. Using Judge Bataillon’s own words, this clause “erects significant burden on the promotion of, or lobbying for, any legislative or governmental action that would eventually extend [that] right.” In other words, the provision would violate their constitutional right. Hasta la vista, baby!

This makes no sense, of course, and it shows the judge was simply looking for a way to invalidate an amendment he didn’t agree with personally. But there are legitimate reasons for requiring the President to be a natural-born citizen, and there are legitimate reasons for requiring marriage to be only between a man and a woman—health, procreation and societal stability, among others.

Judge Bataillon’s activism is further highlighted by declaring the amendment a bill of attainder in violation of Article I of the Constitution. Is this amendment determining guilt? Inflicting punishment? No. Not at all.

This amendment prohibits state sanctioning of faux marriage and limits marriage to a man and a woman, just as it can’t be between a mother and son or among multiple partners. Still the court said Nebraska’s amendment “amounts to punishment.” Unbelievable!

To this writer, punishment is reading an opinion like this one. It punishes the majority of Nebraskans who want to protect marriage and, instead, who see their efforts and rights trampled by an activist court. And it punishes the American judicial system, which seems to be losing more and more credibility as it increasingly relies on personal beliefs instead of the rule of law for judges to reach their decisions.

“This ruling is an example of how some judges play darts: Throw the dart and draw a bull’s eye around it,” said Jan LaRue, CWA’s chief counsel. “The people’s hope is that the U.S. Court of Appeals for the 8th Circuit will recognize that this is no constitutional bull’s eye.”

Mario Diaz, CWA’s Multimedia Production Engineer, is a student at Catholic University School of Law.

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