For the second time, Federal District Judge Joseph Bataillon—now a 65-year-old “senior judge”—is attempting to deprive Nebraskans of their right to amend their state constitution.
Bataillon ruled this week that Nebraska voters acted unconstitutionally—in violation of the federal constitution—when in 2000 they voted overwhelmingly to amend the Nebraska constitution to ban legal recognition of same-sex marriages in Nebraska.
Bataillon’s second effort to tell Nebraskans what they cannot do in regard to their own state constitution became public this week with his release of an order purporting to override the 2002 popular vote amending the state constitution.
Has Bataillon’s First Attempt Been Largely Forgotten?
Bataillon’s first attempt to deprive Nebraskans of their rights under the state’s constitution came in 2005. He held then—as he did this year—that Nebraska’s constitutional amendment banning legal recognition of same-sex marriages in our state must give way to federal judicial intervention.
When that 2005 ruling was appealed by the state, Bataillon’s argument was flatly rejected by the United States Court of Appeals for the Eighth Circuit.
The Eighth Circuit Court rejection of Bataillon’s decision included these words:
“Laws limiting the state-recognized institution of marriage to heterosexual couples…do not violate the Constitution of the United States.”
A Very Strange Piece Of Judicial Reasoning
Bataillon’s current effort to limit Nebraskans’ right to amend their state constitution includes a very strange piece of what is supposed to be judicial reasoning; i.e., that Nebraska ban on state recognition of same-sex marriages is based in part on the fact that same-sex partners cannot produce children.
In following the controversy over Nebraska’s 2000 constitutional amendment I have never before encountered the argument that the 2000 amendment somehow unconstitutionally discriminates against same-sex partners because of the quite obvious fact that they cannot produce children.
Obviously they cannot produce children. That is surely not a legal issue.
Recognizing as Nebraskans’ right to amend their own constitution would be appealed, Bataillon suspended the effective date of his ruling for a week, to give the state time to appeal to a higher court.
Within an hour, Nebraska Attorney General Doug Peterson filed an appeal with the 8th Circuit Court of Appeals asking for “immediate relief.”
Nebraskans Who Oppose 2000 Amendment Have Two Options
Bataillon’s efforts to override the expressed will of Nebraska voters overlooks the fact that Nebraskans who wish to overturn the 2000 ban on same-sex marriages had two paths open to them:
(1) Persuading the Legislature to authorize a state-wide vote on the issue of whether the 2000 state constitutional ban on state recognition of same-sex marriages should be overturned.
(2) Circulating petitions which, if signed by enough Nebraskans qualified to vote in state elections, would bring a statewide vote on the question of repealing the 2000 state constitutional amendment.
The petition route to a favorable public decision on a controversial issue was successfully followed by a liberal group that brought to the 2014 ballot a vote on the issue of increasing state-mandated minimum wage to $8.00 in 2015 and $9.00 in 2016, in comparison to the federally-mandated court level of $7.25.
Petition For Vote Route Is Clearly Available
The petition-route is clearly available to the same-sex marriage advocates.
I know of no accurate sampling of Nebraskans’ opinion as to whether a majority will support the ban on same-sex marriages. But my guess would be that a majority of Nebraskans would prefer to settle the issue themselves—perhaps with another vote on the matter rather than have it decided for them by a federal judge or judges.
* * *
W-H Takes Different Stand Than
Governor And Catholic Archbishops
A World-Herald editorial this week carried the headline: “Times call for respect,” and finished with these words:
“Finally, Nebraska’s reputation deserves respect. Ours is a welcoming and friendly place, one where good things happen because we all work together.
“A federal judge has spoken. While awaiting further court action and the Supreme Court’s decision, respecting the law and treating all of our fellow citizens with respect will serve us best.”
I don’t believe that Nebraskans’ treating their fellow citizens with respect is or has been the issue.
The World-Herald position, as I see it, contrasts very sharply with a significant statement from Nebraska’s three Catholic archbishops.
Readers might have found in the 11th paragraph of a story—on an inside page in The World-Herald—this statement from Omaha Archbishop George J. Lucas, Archbishop James D. Conley of Lincoln and Archbishop William J. Dendinger of Grand Island:
“We are disappointed that Judge Joseph Bataillon granted an injunction today that presumes to nullify what God has written on human hearts since the beginning of time—that marriage is between a man and a woman, and has as one of its principal purposes the procreation and rearing of children. Marriage was established by God before the state and before the Church, and the vitality of both depends on the fruitful union of husband and wife.”
Governor Pete Ricketts, a Catholic, has also taken a stand against judicial overturn of the Nebraska constitutional amendment.
* * *
How About This For An Upbeat Column Ending:
NU Track Team Wins Conference Championship
For an upbeat ending to this week’s column, let me point out that while Nebraska’s basketball team had received front-page attention in The World-Herald Sports Section after suffering an 81-57 shellacking by Ohio State, there was good news in the fact the Nebraska track team figuratively and literally ran away with the Big Ten indoor track meet championship.
I understand why the basketball shellacking got front page attention in The World-Herald’s sports section.
But I don’t understand why the front-page spotlight didn’t fall also on the Husker track team’s decisive victory (127 points to 86 points by second place Illinois) in the Big Ten (really now the Big Fourteen) indoor track championship meet.
But front page or page 3, good news in the performance of Coach Gary Pepin and his injury-handicapped Cornhusker track team in winning Nebraska its first conference track championship since 2007.
# # #