Friday, May 13, 2005

Nebraska strikes down "marriage plus" amendment

Just days before a petition drive will begin in Arizona to put a "marriage plus" amendment (not only defining marriage as between one man and one woman, but invalidating domestic partnerships and any other legal arrangements that confer "marriage-like" benefits, including health benefits to city, county, and state government employees) on the ballot, a federal judge has struck down Nebraska's state amendment.

U.S. District Judge Joseph Bataillon said the ban "imposes significant burdens on both the expressive and intimate associational rights" of gays "and creates a significant barrier to the plaintiffs' right to petition or to participate in the political process."

Bataillon said the ban beyond "goes far beyond merely defining marriage as between a man and a woman."

The judge said the "broad proscriptions could also interfere with or prevent arrangements between potential adoptive or foster parents and children, related persons living together, and people sharing custody of children as well as gay individuals."

Exactly. Now, while I'm no big fan of a marriage amendment of any sort, I certainly could swallow just defining marriage as between a man and a woman more easily than I could denying any rights to same-sex couples. I keep coming back to the same issues: hospital visitation, rights of survivorship, health benefits, stability for children. Denying these things to anyone is just mean-spirited and destroys rather than protects families and children.

The opposition, of course, will start singing the "activist judge" refrain.

"Seventy percent of Nebraskans voted for the amendment to define marriage as a union between one man and one woman, and I believe that the citizens of this state have a right to structure their constitution as they see fit," [Nebraska Attorney General Jon] Bruning said.

I really think there should be major limits on how much of a "right" we have to "structure the constitution as [we] see fit." Constitutions are about protecting rights, not taking them away. The idea that majority rule should come above justice is chilling. If majority rule is really all that matters, then why did we end slavery or segregation? We have the judicial system specifically for matters like this, to protect minorities from the tyranny of the majority. That's what James Madison thought, anyway.


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