ConfirmThem

By AndrewHyman Posted in Senate Rules — Comments () / Email this page » / Leave a comment »

Today, U.S. District Judge Joe Bataillon (a Clinton appointee) struck down part of the Nebraska Constitution, which the people of Nebraska had adopted five years ago with 70 percent of the vote. Article I, Section 29 of the Nebraska Constitution said that two people in a gay relationship may be treated like two single people, but may not be treated like a married man and woman:

“Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska."

One of the big issues in the filibuster debate is whether the Senate minority should be able to demand judges who will go along with this kind of decision by Judge Bataillon.

Here is what Judge Bataillon said about this provision of the Nebraska Constitution:

“Section 29 of the Nebraska Constitution is hereby declared unconstitutional and enforcement of the same is permanently enjoined."

The judge said that Section 29 violated the First Amendment right to petition, because it made it impossible for citizens to obtain legislation that would violate Section 29. The judge said that Section 29 violated the First Amendent right of two people to peacably assemble, because it prevented them from voluntarily associating with each other. The judge said that section 29 was a "bill of attainder" in violation of Article I, Section 9 of the Constitution, because it punished a particular group of people without a trial. And, the judge said that Section 29 violated the Equal Protection Clause in the 14th Amendment of the Constitution, because it treated the union of a man and a woman differently from the union of a man and a man, or the union of a woman and a woman.

Whether you agree or disagree with Section 29 of the Nebraska Constitution, it doesn't take a rocket scientist to see that it has been stricken down on very questionable constitutional grounds, by an activist judge who has a very expansive view of the national government's ability to tell the people of each state how to govern themselves.

Standing up for federalism does not mean approving of everything that a state does. Senator John Warner of Virginia, for example, took a principled stand against legislation to keep Terri Schiavo alive, because he felt that it was a matter for the states to decide --- and not because he agreed with what was going on in Florida. Today, Senator Chuck Hagel of Nebraska took a similar position:

“I am deeply disappointed in Judge Bataillon’s decision. States have always had jurisdiction over marriage laws. A federal judge has taken this right away from the people of Nebraska. I am hopeful the federal appeals court will recognize the rights of Nebraskans to determine their own laws governing marriage and reverse this decision."

The present controversy about judges is very much about whether the Democratic minority in the Senate should be allowed to demand judges who will do their bidding, in order to alter the legal landscape in ways that are neither commanded nor implied by the Constitution. Senators Hagel and Warner will have to decide whether it's acceptable for a Senate minority to use filibusters in order to dictate to the President whether or not his nominees must be activist judges.