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.

Comments

[Douglas Fletcher]

Does this decision have any effect on the legality of sex with donkeys?

[Sen. Rick Santorum (R-PA)]

I'm on the next flight to Omaha! Time to go fuck a beagle!

[metalgrid]

I don't know why I even bothered reading the whole thing, but it seems to me that part of the decision had absolutely nothing to do with actual 'same-sex couples' per se. The judge was provided proof that the law was being implemented with a rather large sweep of the brush - by affecting not only gay peoples, but also tenants, and other partnerships where two parties happened to be of the same sex. Consequently, the judge in the case considered it in it's rather broad application and found it to be unconstitutional.

Mind you, if the judge actually WANTED to strike down the law, he could have addressed it under the equal protection clause and provided a much firmer basis when applied to gay peoples. However, the fact that he did not do this, but instead went the path of Romer and other precedents indicates that it was not the gay part of the amendment he was trying to strike down but the fact that it applied to non-gay people in contractual arrangements that could be construed to be arrangements usually attributed to marriage.

So just like in Virginia, this is an amendment that went too far. The wording in it is ambiguous enough to even count cohabitation as an incident of marriage and thus prevent someone from sharing their appartment with another person of the same sex, whether sex was involved in it or not.

[bruce]

nice counting crows reference there Julian

[Tim Higgins]

Agreed, Bruce.

[joe]

metalgrid,

I suspect that these initiatives, like abortion-related legislation in Congress, is deliberately written to be unconstitutional, so that the fundies can enjoy an endless succession of votes and lawsuits to whip up the idiots.

[joe]

You know, the type of idiots who can't quite manage to make their subjects and verbs agree.

Ugh.

[thoreau]

metalgrid-

So, what you're saying is that when you get down to the nitty-gritty the ruling should be uncontroversial because the law in question did things that should make even the opponents of gay marriage say "huh?"

In that case, we have what is in fact an eminently reasonable ruling that is guaranteed to create maximum controversy.

Let's all applaud the foes of gay marriage for a brilliant PR coup: They deliberately phrased a gay marriage ban to be stricken down, so they'd have an excuse to push for an amendment to the US Constitution.

I gotta hand it to them.

[Steve]

Volokh is right about one thing: the First Amendment argument (a gay marriage ban limits my freedom of speech because it makes it harder to advocate gay marriage) is really, really, really stupid.