Omaha Stakes

Marriage in Nebraska

Last Thursday, a federal judge in Omaha overturned Nebraska’s constitutional amendment that banned same-sex “marriage.” And the press reaction to the story was muted. Why? Because this decision proves that we and other critics of the courts and advocates for a constitutional amendment banning same-sex “marriage” have been right all along.

In November 2000, Nebraska voters, by a 70-30 margin, approved the amendment that stated that “only marriage between a man and a woman shall be valid or recognized in Nebraska.” It further prohibited the recognition of the “uniting of two persons of the same sex in a civil union, domestic partnership or other similar same-sex relationship.”

The amendment was approved in the wake of a decision by the Vermont Supreme Court. Nebraska’s concern, as elsewhere, was that same-sex couples would marry in Vermont, come to Nebraska, and demand legal recognition.

Given the way state and federal judges find previously undiscovered or even unimagined “rights,” supporters of this and similar amendments wanted to lock this prohibition into their constitution. But even this turned out not to be enough.

Federal judge Joseph Bataillon threw out the amendment, saying it imposed “significant burdens on both the expressive and intimate associational rights” of gay men and lesbians.

Instead of deferring to the voters’ judgment on the nature of marriage, Bataillon chose to insult them. He wrote that the amendment “goes so far beyond defining marriage that the court can only conclude that the intent and purpose of the amendment is based on animus against this class.”

Ah, yes, if that language sounds familiar to “BreakPoint” listeners and readers, that’s because it’s straight out of Romer v. Evans. In that case, the Supreme Court overturned a Colorado amendment that prohibited extending anti-discrimination laws to cover sexual orientation. The majority, led by Justice Kennedy, concluded that the only possible reason people would approve such a measure was hatred of homosexuals.

Now, given the prominence of same-sex “marriage” in both public debates and in the liberal imagination, you would think that this story would warrant big headlines in major newspapers.

You would be wrong. The New York Times simply reprinted the AP story. David Buckel, a lawyer for the plaintiffs, downplayed the ruling’s significance and called the Nebraska law “unique.”

Why the muted response? Because the ruling proves that social conservatives are right about activist judges and about the need for the Federal Marriage Amendment. Opponents of the proposed amendment have argued that it’s unnecessary since states have enacted their own constitutional amendments defining marriage. I suppose we can thank Judge Bataillon for proving that this approach will not work. A judge’s willingness to characterize the will of 70 percent of the electorate as “animus” manifests a contempt for democratic decision-making. When judges feel free to substitute their opinion for nearly everybody else’s, only a constitutional amendment will do.

That’s the message you need to send to your U.S. representative and senators. Put this matter beyond the reach of judges whose animus for the electorate knows no bounds. We need a federal marriage amendment now.


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  • Phoenix1977

    Correct me if I’m wrong, but didn’t the ruling in Obergefell vs. Hodges state ALL state laws (which would include amendments to state constitutions) were unconstitutional and therefor void?
    So why was a ruling on the Nebraskan amendment even necessary?

    • Gina Dalfonzo

      See my response to Benjamin, above.

      • David Carlson

        Thanks.

  • Benjamin Blowers

    I may be wrong here, but didn’t this happen back in 2005? Judge Bataillon’s ruling was appealed to and overturned by the 8th Circuit, but their ruling was invalidated by the Supreme Court’s Obergefell decision. Is this article just a repost of an older story?

    • Gina Dalfonzo

      Apologies. We had put the wrong date on that when transferring over some material from the old site.

      • Benjamin Blowers

        Ah technology. Thanks for the clarification!