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Saturday, May 14, 2005

Bataillon Nukes Democratic Party

The judge just precluded Democratic gains in the 2006 mid-term elections by invalidating this Nebraska Amendment:
“Only 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.”

I have been reading the judge's decision in the Nebraska same-sex marriage case, and I'm close to the suspicion that Justice Joseph Bataillon took a large bribe from Karl Rove somewhere in the recent past. It is hard to believe that a federal court has just decided that Nebraska's constitutional amendment banning same-sex marriage or any similar arrangement constitutes a bill of attainder in response to the plaintiffs' contention that:
"Section 29 effectively disenfranchises lesbian, gay and bisexual people and their supporters as they can no longer petition their representatives and city and local governments for legislative changes that would protect their relationships,agreements, and interests."
To do so the court looked at the following tests and decided that the Constitutional amendment qualified as punishment:
In deciding whether a legislative act inflicts punishment, the court conducts three necessary inquiries: (1) whether the challenged legislation falls within the historical meaning of legislative punishment, (2) whether the statute can be said to further nonpunitive legislative purposes, and (3) whether the legislative record shows a congressional intent to punish.
Should it be upheld on appeal, this decision effectively states that restricting marriage or similar arrangements to spouses of the opposite sex does not "further nonpunitive legislative purposes". The court also ruled that the amendment was an unconstitutional violation of equal protection of plaintiffs' First Amendment rights on the basis that it shifted the balance of power against them a la Romer v. Evans and so violated their right to associate and petition the government for redress of their grievances.

There is one small problem with using Romer - one of the fundamental findings in Romer was that Amendment 2 of the Colorado Constitution served no legitimate government purpose. Therefore, while Justice Bataillion's decision purports to strike down the constitutional amendment passed by referendum in Nebraska, if it stands it will serve as a precedent that government has no legitimate purpose to bar same-sex marriage. From Romer:
Taking the first point, even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority.
We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.
Justice Bataillon also cited "Hunter v. Erickson, 393 U.S. 385, 390-91 (1969) (holding that a political majority may not restructure the political process to make it more difficult for a political minority to obtain favorable government action in a race discrimination case)."

Let us not kid ourselves. The Massachusetts Supreme Court looked at its own constitution and ruled that it precluded any law to restrict marriage to a couple of the opposite sex. A federal judge has just ruled that a legislature violates the Equal Protection clause of the federal constitution and passes a bill of attainder if it attempts to bar same-sex civil unions or domestic partnerships. The effect is to throw the ball into the courts of each state, rather than their legislatures.

It is doubtful that restricting marriage to couples of the opposite sex and providing civil unions for couples of the same sex could withstand an Equal Protection challenge. It is rather obvious that the purpose is to discriminate, which is why the various states passed the amendments in their current broader forms.

Bill Frist must be overjoyed this morning. Not just the religious right will be hearing about this. No one can deny that a federal case that attempts to destroy America's traditional definition of marriage has been plonked squarely in the federal judiciary's lap. The way that Bataillon has structured his ruling probably means that no state can legally bar same-sex marriage if this ruling is upheld. The Democrats will have great difficulty in maintaining their credibility with judicial filibusters. The southern Democrats might as well leave the national party now. This will not be forgiven.

Update: Kerr at Volokh comes to the same conclusion regarding the legal result, but thinks it will be overruled at either the Appeals Court or the Supreme Court..

When one person, this judge, has the power to over ride the will of the majority it's time to be scared!

That was an outstanding analysis once again MOM. This ruling may neuter the Dems in regards to filibusters. I will strengthen proponents of the Defense of Marriage Act and should be a huge election issue in 2006.

The judge had to know what he was doing. Considering his background, I can't imagine what he was thinking. Your theory on a payoff seems plausible.
That was meant to be a joke....

I'm kind of floored. I think the reasoning is odd to say the least. Now he has to rule as he sees it legally without political considerations, but lordy, lordy. It's no time to be a Democrat.

justadog, that's right. That's what worries me.
I agree, but you would think he could have waited a week.
My guess is that they really need to be handling those issues before the election! We don't elect them to start working only when they have to run for office.
I read the decision. It is actually very well written and reasoned (from a legal standpoint). It is true that this will hurt the Dems, but from a legal perspective, the will of the people is not always constitutional. And when you take all moral and religious arguments out, there is really no legal justification to the law.

And to justadog - when one judge no longer has the power to over ride the will of the majority is when I will truly be scared. And BTW, it is not just one judge. That's why we have appeal courts and the Supreme Court. It is NEVER just one judge.
Well reasoned? There are both specific judgements and general ones that one could drive a truck through.

I would say that if this judgement stands one system of government just ended and another has begun a al Judges of the Old Testament. This will be fascinating.
Yes, well reasoned. Justified with constitutional precepts and backed with case law.

And show me a decision that you can't drive a truck though. That is the nature of the beast. Try to show me a law that is completely 100% constitutional. This is all about degrees of grey.
Dingo, you are making my point for me. There has been a definite change in jurisprudence. Many call it "judicial activism". When creating a new class of rights you do generate odd case law that is expansive and wobbly.

If all laws are unconstitutional, then we have created a judicial tyranny in which those with the most money, determination and friendly judges win. Is that your idea of what our government should be? Read the book of Samuel.
what I am talking about is even in rescrivtive decisions you can still drive a truck through it. There is something to disagree about in every situation no matter what side you fall on. When there are clear answers, the case never gets to court most of the time.

for an example of problems of law

"no citizen shall spit in the street."

can you be in the street and spit on the sidewalk? What is the intent of the law? If you spit on the sidewalk and are arrested, it is in violation of due process. What if you were aiming to hit the grass, but hit the street instead, should intent of the spitter count? What if a bee flies in your mouth, can you spit it out? What if you are spitting on the ground in front of the feet of a neo-Nazi to show your disgust for him. Is the law a violation of free speech? See what I mean about almost everything being unconstitutional in some form or nother.

These all sound like silly little things, but these are the things that come up in the courtroom that a judge has to decide.
I've written a rather long essay on this general topic.
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