Heres the best the Washington Post can muster in its attempt to calm the outcry after Judge Bataillons decision in the Nebraska case. Conceding that the case "is weak in critical respects and will be vulnerable on appeal," the unsigned editorial suggests only that the amendment may be overbroad, But heres the kicker:
Even if Judge Bataillons opinion were entirely frivolous, however, it would still be a lousy argument for writing discrimination [an amendment defining marriage as between a man and a woman] into the federal Constitution. The American judiciary has a process for correcting its mistakes: two layers of appellate review, culminating at the Supreme Court of the United States. In the American system, the Constitution shouldnt be changed to reverse a single judge in Nebraska.
Two thoughts: First, the Constitution has yet another process for correcting judicial mistakes; its called the amendment. Second, the Democrats, supported by the Post, would likely seek to appoint judges (such as Bataillon, appointed by President Clinton), who would not correct, but rather embrace such "mistakes." The judiciary is part of a larger constitutional system, not simply and solely self-correcting, but also corrigible by the people and their representatives, through the processes of nomination and appointment, impeachment, legislatively altering jurisdiction, and constitutional amendment. The problem with awaiting final judicial settlement of this case is that (and the editorialists at the Post surely know this) the appeals process takes a long time, so that "correction" may not occur for a decade or more (at which point a Democratic President may have altered the balance on the Supreme Court). Whats more, if the courts happen to embrace rather than reject this opinion, the Posts line of argument would have us accept it as the final word, with the full "moral authority" of the highest court, which would make it much more difficult to overturn by amendment.
In other words, the actual effect of the Posts argument is to favor the supremacy of the very judiciary to which gay rights advocates constantly turn in the fond and often well-founded hope that they can win in court what they cant win at the ballot box.