Omaha, Somewhere in Middle America


A federal judge in Nebraska gets right to the heart of matters with a decision overturning the state's anti–gay marriage amendment.

Eugene Volokh has a lengthy analysis up, concluding that the decision is "quite mistaken, and will be reversed on appeal." I haven't read the full decision yet, but if Volokh's summary is accurate, I'm inclined to agree. I'm sympathetic to the Romer-logic holding that there's no legitimate state interest (other than fig-leaf shams) in restricting marriage to straight couples, but this sure sounds like a stretch of a relatively narrow decision. And while I think it'd be right to overturn an amendment that went beyond limiting marriage to restricting a broad range of legal rights, as Virginia's seems to, Volokh's claim that the Omaha judge is reading the amendment extremely broadly strikes me as probably right too. And from a purely strategic perspective, I'm worried that attempts to take this question out of state hands—however wrongheaded the states may be—will reinvigorate the push for a Federal Marriage Amendment, which otherwise seemed dead in the water. If the decision were to be upheld, I'm forced to hope, against my deeper inclinations, that it would be in narrow terms that distinguished state authority to define marriage from efforts to more generally restrict or penalize same-sex relationships.