Strengthening Constitutional Self-Government

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Federal court decision on gay marriage ban

Here is Eugene Volokh’s discussion of this decision, striking down Nebraska’s attempt constitutionally to define marriage as between a man and a woman. According to Volokh, the decision is bizarre and sweeping:

But in any event — and here I return to what I said in point 1 — if the court is right about the Romer analysis, then it must be because there is no legitimate government interest in favoring opposite-sex long-term relationships over same-sex ones. Likewise, if the court is right about the intimate association analysis, then it must be because the right to intimate association guarantees same-sex couples the right to equal government benefits with opposite-sex married couples, rather than just a right to live together. And if the court is right about bills of attainder, then its analysis equally applies to state law rules that preempt contrary marriage provisions at the city level. (Imagine Portland or San Francisco trying to set up its own marriage rules, over the objections of the rest of Oregon or California.) And if that’s so, then despite the court’s protestations, its reasoning necessarily means that states are constitutionally required to recognize same-sex marriage (or, under the bill of attainder analysis, at least are required to let any locality recognize same-sex marriage).

So this isn’t just a battle over state constitutional amendments, and what voters can do and what they must leave to the state legislature. The court’s decision, if upheld, would be a Massachusetts Goodridge (or at least its Vermont civil-union cousin, Baker) for the whole nation. I don’t think this is at all required by Romer, Lawrence v. Texas, or any other Supreme Court decision. I’m pretty sure that the Eighth Circuit Court of Appeals will reverse the decision; and if it doesn’t, I’m pretty sure that the U.S. Supreme Court will — and should.

The judge, by the way, is a Clinton appointee. I agree with Volokh that the decision is likely to be reversed. But it is "timely" in another way: it cannot help but add to the pressure on the Senate to overcome Democratic obstructionism on the President’s judicial nominees. When the ACLU and its allies on the bench overreach, as they have in this case, they will provoke a backlash. Under the circumstances, how can Ben Nelson continue to support a filibuster?

Stanley Kurtz weighs in and Ben Nelson was "unavailable for comment."

Discussions - 2 Comments

I think we have to hold Republicans’ feet to the fire on this judicial appointment problem. Recently I’ve been beset by numerous phone calls from the GOP asking for more money. Each time I’ve told them "Get these judges appointed and I’ll give you money. Not before." I’m afraid they are going to have to mess up the "clubiness" of the Senate to get this done. I for one am tired of this lack of backbone and resolve on the part of Frist (and Bush).

I’m wondering if this will hurt Ben Nelson in 2006. Don Stenberg (the conservative former AG - Stenberg from the US Supreme Court Stenberg v. Carhart partial-birth abortion case) is running against Nelson. If Nebraska has to go throw another initiative, one that is more narrowly tailored than Initiative 416, then this can’t help Nelson because it will be during the 2006 election.

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