A ruling in Nebraska demonstrates the need for a federal marriage amendment.

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Courting FMA
A ruling in Nebraska demonstrates the need for a federal marriage amendment.

Thursday’s decision by a federal court to overturn Nebraska’s state constitutional marriage amendment is a landmark moment in the battle over same-sex marriage. For the first time, a federal court has taken this matter out of the hands of a state. A constitutional amendment passed with a 70 percent majority of Nebraska’s voters has been voided. There could be no clearer demonstration of the arrogance of activist judges. This should remind Republican senators of the urgent need to confirm the president’s nominees to the bench. And of course this decision clearly shows that, without a federal marriage amendment, same-sex marriage is destined to be imposed on the country by the courts.

Eugene Volokh has posted a very sharp analysis of the Nebraska case. Let’s use Volokh’s thorough analysis as a way into this issue. The most important point Volokh makes is that the logic of the Nebraska decision, if upheld, would have the effect of imposing gay marriage on the entire country. As noted, this is exactly why a federal marriage amendment is needed. Yet Volokh himself is a libertarian-leaning law professor sympathetic to same-sex marriage and opposed to a federal marriage amendment. Volokh seems to think that this obviously wrongheaded decision is destined to be reversed on appeal. So why bother with a federal amendment if this fluke of a decision is about to be overturned?

Well, this decision is not a fluke. The parts of the decision Volokh thinks are the most obviously wrongheaded simply mimic the core arguments of same-sex-marriage advocates. Volokh criticizes the decision for holding that the state has no rational interest in promoting unions among specifically heterosexual couples. Volokh doesn’t personally endorse the idea that the state ought to claim such an interest, but he insists that reasonable people can differ on the matter. Says Volokh, it’s not irrational on its face that the state might have a special interest in promoting a particular sort of relationship between men and women. Yet the distinctive thing about public debate on this issue is the claim by same-sex-marriage advocates that there are no rational grounds for opposing gay marriage — that opposition to same-sex marriage is rooted in sheer animus. The court here is simply buying into the widespread view that this is not a rational debate, but a debate between rationality and prejudice. The Goodridge decision in Massachusetts did something similar.

Volokh also criticizes the case for ignoring the distinction between the right to intimate association and the right to have the government recognize or subsidize your particular form of relationship. After all, says Volokh, the government doesn’t have to provide the benefits of marriage to single people. Volokh is right on substance, but misses the point nonetheless. A core premise of same-sex-marriage advocates is that a lack of government benefits does in fact violate their rights. The mere right to association is not enough, they say. They want benefits and state recognition for their relationships — and they insist that their entitlement to that recognition is a “right.” Even now, “single’s rights” advocates are making exactly the same argument for their own entitlement to the benefits of marriage. In fact, single’s rights groups self-consciously model their own demands on the demands of the gay marriage movement.

So I agree with Volokh that this decision is wrongheaded. It blurs key distinctions, refuses to recognize that there is a rational argument on both sides of the issue, and ultimately undercuts the rationale for state support of marriage. Yet that is exactly what the movement for same-sex marriage has been doing for years.

Volokh is “pretty sure” the Court of Appeals will reverse this decision. If it doesn’t, says Volokh, the Supreme Court will — and should — reverse. This strikes me as utterly naive. Volokh seems to think the judicial overreach in this case is obvious. But that doesn’t explain how the case got wrongly decided to begin with. The answer is clear. This judge has accepted the framing of the issue adopted by both same-sex-marriage advocates — and the entire mainstream media. This isn’t some judicial fluke. It’s evidence that the movement for same-sex marriage is successfully framing the debate — and thereby undermining the legal basis for marriage itself.

If this particular decision is reversed on appeal, that’s cold comfort. It’s all-too-obvious that the folks who think the way this judge does are not going to give way after a single reversal. They rightly believe that, over time, the courts have been shifting in their direction. It’s not just some crazy off-the-reservation judge who’s flying in the face of Volokh’s favored legal principles. It’s the entire liberal establishment. That is why, for those who oppose same-sex marriage, there is simply no alternative to a federal constitutional amendment.

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More judicial activism.

Equally important, it shows the need to bring about a reform of the judicial branch. Do you all still say there's no such thing as judicial activism? A judge threw out a state constitution on the grounds "he didnt' like it". Come on, we're not slaves to the black robes yet, and we don't have to become that way...But if we allow this current trend to continue, Congress, the White House and anyone in State Governements will be figureheads. The appointed, uneelcted judges will tell hold your leash and it will be too late.

Proves America is a radical left wing hippie state ruled by stalinist pigs. I'm sorry but I have to say I HATE THIS GOVERNMENT!

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Originally Posted by Kaiser of Arabia

Proves America is a radical left wing hippie state ruled by stalinist pigs. I'm sorry but I have to say I HATE THIS GOVERNMENT!

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I can't beleave you used the words hippie and Stalinist in the same sentence(oops I just did too). I think the hippies wouldn't like being in a stalinist state. Not very sychadelic. ~;)

Here's my prediction if things continue at their current pace, between the gay agenda and the sexualizing of our youth..... by the year 2020, because of several rulings and court orders at the federal level, teenage boys and girls will be forced to engage in a homosexual act in their health class, as part of sex education. Then, once they've tried the other way, the court will allow them to determine if they're gay/straight/or bi.

That sounds like fun to me Don. :devilish:

Hey laugh it up, big guy. I nominate your son to play catcher for all the other boys in his class.

ALSO MAY I ADD
That by 2065 ethnically born Americans will be the minority in this nation because of the radical leninist pigdogs in government! GAH!

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Originally Posted by Kaiser of Arabia

Proves America is a radical left wing hippie state ruled by stalinist pigs. I'm sorry but I have to say I HATE THIS GOVERNMENT!

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I think I just nearly choked myself to death laughing while drinking, after reading that comment.

Dear oh dear, Capo you do know comedy.

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A constitutional amendment passed with a 70 percent majority of Nebraska’s voters has been voided.

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Thats just wrong. It would still be wrong even if it was reversed and I was part of the 30% who didnt want gay marriage.

DANG IT, I am sick of these judges!

The dems insist that we allow everyone's voice be heard, then go overturning any majority passed law they don't agree with!

Crazed Rabbit

GAH I HATE LIBERALS GAH I HATE JUDGES GAH I HATE THIS GOVERNMENT GAH!

i'M uberpißed right now

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Originally Posted by Kaiser of Arabia

Proves America is a radical left wing hippie state ruled by stalinist pigs. I'm sorry but I have to say I HATE THIS GOVERNMENT!

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Yes, we all know the USSR was all so tolerant of homosexuals... Get a clue.

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Originally Posted by Don Corleone

Here's my prediction if things continue at their current pace, between the gay agenda and the sexualizing of our youth..... by the year 2020, because of several rulings and court orders at the federal level, teenage boys and girls will be forced to engage in a homosexual act in their health class, as part of sex education. Then, once they've tried the other way, the court will allow them to determine if they're gay/straight/or bi.

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Do you really beleive this drivel? Normally I disagree with you but can see where you are coming from, but this just appears to be senseless hyperbole.

EDIT: Sorry BP, I initially quoted you instead of capo with my top quote. Changed now.

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Do you really beleive this drivel? Normally I disagree with you but can see where you are coming from, but this just appears to be senseless hyperbole.

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Im sure it was said tongue in cheek but it is too close to reality to be funny.

Without commenting on the issue itself, the American legal system is getting a bit weird......

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Originally Posted by dgb

Yes, we all know the USSR was all so tolerant of homosexuals... Get a clue.



Do you really beleive this drivel? Normally I disagree with you but can see where you are coming from, but this just appears to be senseless hyperbole.

EDIT: Sorry BP, I initially quoted you instead of capo with my top quote. Changed now.

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I don't actually believe the scenario I proposed will come to pass exactly as I stated, but I am certain other, more bizarre and onerous things will be forced upon the public by a handful of aristocrats in black robes. I'm sorry, I got a little caught up in my screed, and if I offended any homosexual members of the backroom, I apologize.

Dgb, the US is like no place else on Earth. I know you think it's just that we're more conservative, but in many many ways, we're more liberal than any of you. Do you have a school district requiring a sex education describing how to perform oral sex to 9 year olds (4th grade)? We do! Why? Because oral sex means they won't get AIDS. Our surgeon general wanted each and every school in the country to teach kids how to mastrubate...themselves and each other.

No matter what it is, we just can't seem to find the middle of the road. Right or left, we live in the land of bizarre hyperbole. The one thing that remains consistent however is the endless march away from democracy....not towards a George Bush led dictatorship, but towards a black robed oligarchy that has no concern for the welfare of it's citizens and seeks other countries crazy laws to set precedent (like Nigeria).

Is that editorial about the courts decision or Eugene Volokh? Seems to contain little usefull information.

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Originally Posted by Don Corleone

Here's my prediction if things continue at their current pace, between the gay agenda and the sexualizing of our youth..... by the year 2020, because of several rulings and court orders at the federal level, teenage boys and girls will be forced to engage in a homosexual act in their health class, as part of sex education. Then, once they've tried the other way, the court will allow them to determine if they're gay/straight/or bi.

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Slow down there speedy! The court only said that it went against the 14th Amendment to the U.S. Constitution, nothing more. Gays are still not allowed to marry, or anything else really.

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=Don Corleone]
No matter what it is, we just can't seem to find the middle of the road. Right or left, we live in the land of bizarre hyperbole. The one thing that remains consistent however is the endless march away from democracy....not towards a George Bush led dictatorship, but towards a black robed oligarchy that has no concern for the welfare of it's citizens and seeks other countries crazy laws to set precedent (like Nigeria).

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Nigeria is a HomoHaven?

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Originally Posted by GodsPetMonkey

Is that editorial about the courts decision or Eugene Volokh? Seems to contain little usefull information.



Slow down there speedy! The court only said that it went against the 14th Amendment to the U.S. Constitution, nothing more. Gays are still not allowed to marry, or anything else really.



Nigeria is a HomoHaven?

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This isn't just about homosexuality, although that does seem to be one agenda the courts seem to be behind (no pun intended). But some court recently had a ruling where they cited a law in Nigeria, because we had nothing on the books that could justify their ruling. I forget the details of the case, but it had nothing to do with homosexuality.

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A constitutional amendment passed with a 70 percent majority of Nebraska’s voters has been voided.

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Why shouldnt the President have this power or the congress also. I thought they were supposed to be equal branches of the government. Ill tell you why . Because the supreme court gave itself that power unconstitutionaly just as it unconsitutionaly passed Rowe vs Wade. Their just a bunch of lawyers who rarely can some to an agreement on the issue. It seems to me that they should use the super majority rule the same as has to be done with a consitutional amendment to overthrow the will of the people. These 5 to 4 decisions are hardly inspiring of them getting it right. It seems if they cant figure it out how are we poor schleps too?

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Originally Posted by Don Corleone

This isn't just about homosexuality, although that does seem to be one agenda the courts seem to be behind (no pun intended). But some court recently had a ruling where they cited a law in Nigeria, because we had nothing on the books that could justify their ruling. I forget the details of the case, but it had nothing to do with homosexuality.

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I don't see anything wrong with using international decisions. It's not unheard of, though it is rare.
Courts here can rely on overseas rulings (typically commonwealth nations, then common law nations) if they need to, normally where there is little or no material in their jurisdiction, or what material is available is terrible out of date, but this stuff in persuasive, not binding.

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Originally Posted by GodsPetMonkey

I don't see anything wrong with using international decisions. It's not unheard of, though it is rare.
Courts here can rely on overseas rulings (typically commonwealth nations, then common law nations) if they need to, normally where there is little or no material in their jurisdiction, or what material is available is terrible out of date, but this stuff in persuasive, not binding.

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If you want to let Belize determine your rules for you, have at it my friend, but in America, you're supposed to trace precedent back to American cases. Maybe we should start citing cases in Iran and requiring Sharia while we're at it? Is that on the docket for Aus?

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I don't see anything wrong with using international decisions. It's not unheard of, though it is rare.
Courts here can rely on overseas rulings (typically commonwealth nations, then common law nations) if they need to, normally where there is little or no material in their jurisdiction, or what material is available is terrible out of date, but this stuff in persuasive, not binding.

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Not here they cant and follow the constitution that there sworn to uphold. How the French treat their citizens has no bearing or weight in OUR court system.

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Originally Posted by Gawain of Orkeny

Why shouldnt the President have this power or the congress also. I thought they were supposed to be equal branches of the government. Ill tell you why . Because the supreme court gave itself that power unconstitutionaly just as it unconsitutionaly passed Rowe vs Wade. Their just a bunch of lawyers who rarely can some to an agreement on the issue. It seems to me that they should use the super majority rule the same as has to be done with a consitutional amendment to overthrow the will of the people. These 5 to 4 decisions are hardly inspiring of them getting it right. It seems if they cant figure it out how are we poor schleps too?

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Only if the courts can pass legislation, collect taxes and control the military.

You misunderstand the idea of equal here, no one branch has absolute power over any other... if the legislature didn't like what the courts did, it would do something, if the courts didn't like that, it would do something back, so on for all eternity until someone gives in.

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Originally Posted by Gawain of Orkeny

Not here they cant and follow the constitution that there sworn to uphold. How the French treat their citizens has no bearing or weight in OUR court system.

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Has no bearing here either, and we are unlikely to use french case law anyway, as they are not a common law jurisdiction (IIRC).

We have used US case law though, it's just for inspiration, as I said, persuasive not binding, and not that pursuasive anyway, except when there is nothing else to use.

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Only if the courts can pass legislation, collect taxes and control the military.

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One more time slowly. The constitution never gave the courts the power of judicial review. The supreme court anointed themselves as the supreme descion makers.

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You misunderstand the idea of equal here, no one branch has absolute power over any other..

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BS I understand it all to well. The courts have made themselves the absolute power. Nothing can pass without their ok anymore. It may pass but they will shoot it dowm if they dont like it. Thats far more power than the president or congress has.

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We have used US case law though, it's just for inspiration, as I said, persuasive not binding, and not that pursuasive anyway, except when there is nothing else to use.

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You try citing a foriegn law in a US court and it wont even be heard nor should it be. Its totally irrelevant.

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Originally Posted by Gawain of Orkeny

One more time slowly. The constitution never gave the courts the power of judicial review. The supreme court anointed themselves as the supreme descion makers.

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Yet the other branches have never tried to remove it... perhaps they know something you don't, like the fact that its useful to have when you want to push your agenda, but otherwise don't have the power to do so... 'liberals' aren’t the only ones to abuse this.

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Originally Posted by Gawain of Orkeny

You try citing a foriegn law in a US court and it wont even be heard nor should it be. Its totally irrelevant.

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Originally Posted by Don Corleone

If you want to let Belize determine your rules for you, have at it my friend, but in America, you're supposed to trace precedent back to American cases. Maybe we should start citing cases in Iran and requiring Sharia while we're at it? Is that on the docket for Aus?

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Case Law can be persuasive... as in, the court may decide that the way something (and it doesn't have to be the whole of it) in a foreign case is useful or a good idea... again, this is very rare, but it does happen. Hell, an important precedent for when the defence of duress can be used is taken from Hong Kong (whilst under British dominion), it’s only a small part of the overall decision that was made, but it’s still important. Common law (anywhere) would not work if you were restricted to local jurisdictions.

Now, the legislature may look to foreign laws when drawing up laws of its own... inspiration can come from many places, but it is the discretion of those who apply it to use it, so no, we DON'T have to follow Shiria law.

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Yet the other branches have never tried to remove it...

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They tried to stop it in the first place. Jackson just ignored their edicts. Just because it usurped these powers doesnt make that the final word on the matter.

The State Amendment they proposed is unconstitutional. It reads as follows: "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."

That is a violation the first amendment which says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances ."

Effectively their proposed amendment denies gays the ability to petetion the government, because it refuses to recognize them in the first place. It is the same as Romer v. Evans, which was 6-3, and unlike Roe v. Wade, here it is the "conservatives" creatively interpreting the constitution, whereas the "liberals" (Kennedy is really just mostly impartial and actually makes his decision based on the laws, not his desire) were ruling based on strict interpretation. All they have to do is reword it, so it accomplishes their goal while being constitutional. By merely defining marriage as between a man and woman, which does not go as far as saying they refuse to recognize gay couples. The fact also is most of those 70% had no idea about the other implications of the amendments wording. Striking the amendment down on the basis of it being a bill of attainder was a quite a stretch and quite wrong, imo. Without the Supreme Court, and all appeals courts, ruling whether or not a law is within the constitution, there is chaos, far worse than any activist judge. Please do not misinterpret what I am saying as advocating Judicial Activism, creatively interpreting the constitution, but as supporting the very implied right of the courts to review laws and create order.

You're right Kanamori. On the same grounds, we have to allow murder. The only reason we outlawed it was beause of the 6th Commandment.

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The State Amendment they proposed is unconstitutional. It reads as follows: "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."

That is a violation the first amendment which says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances .""

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Im glad you brought this up as I partly agree with it. Certainly denying people the right to enter into a contract on the basis of their gender is unconstituional and the part denying civil unions is indeed unconstitutional. If he had just struck down that portion I would be praising the Judge instead of critizing him.

"On the same grounds, we have to allow murder. The only reason we outlawed it was beause of the 6th Commandment."

What are you on about? It is certainly not because of the 6th commandment that murder is outlawed...