Gay Marriage Overreaction

Saturday, May 14, 2005

WHEN A FEDERAL court in Nebraska this week struck down the state's constitutional ban on recognition of gay relationships, opponents of gay marriage claimed vindication for their noxious proposal to define marriage in the U.S. Constitution. The decision makes clear that "Congress must pass, and the people of this country must ratify, an amendment to the U.S. Constitution defining marriage as being between one man and one woman," Family Research Council president Tony Perkins said in a statement. Sen. John Cornyn

(R-Tex.) noted that when Congress debated the federal marriage amendment last year, "opponents claimed that no state laws were threatened. . . . After today's ruling, they can no longer make that claim." From all the hysteria, you might think that a federal court had just mandated that Nebraska begin licensing gay marriages. But that's not what happened.

In fact, as the court noted, the plaintiffs "expressly disclaim[ed] an interest in recognition of same-sex marriages, civil unions, or domestic partnerships as a remedy in this case." What the court did, rather, was strike down a provision of the state constitution -- adopted by ballot initiative in 2000 -- that bans not merely same-sex marriage but any "civil union, domestic partnership, or other similar same-sex relationship." The provision's ban on marriage was not what led to it being tossed out.

The opinion by Chief Judge Joseph F. Bataillon of the federal district court in Nebraska is weak in critical respects and will be vulnerable on appeal. Its core, however, is not trivial. The Nebraska provision, particularly as interpreted by the state's attorney general, is so broad as to invalidate any legal recognition of any same-sex relationship. This has implications, the judge notes, not merely for those who would marry but for "roommates, co-tenants, foster parents, and related people who share living arrangements, expenses, custody of children, or ownership of property." The state attorney general, in fact, interpreted it to prevent any state law allowing gay couples to make organ donation decisions for one another. The constitutional guarantee of equal protection may not require states to recognize same-sex marriage, but it unquestionably prevents a state from arbitrarily targeting gay couples for differential treatment.

Even if Judge Bataillon's opinion were entirely frivolous, however, it would still be a lousy argument for writing discrimination into the federal Constitution. The American judiciary has a process for correcting its mistakes: two layers of appellate review, culminating at the Supreme Court of the United States. In the American system, the Constitution shouldn't be changed to reverse a single judge in Nebraska.

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