Half-Cocked: Watch your back, Judge B.

May 13, 2005

Watch your back, Judge B.

I'm sure by morning the wingnuts will be whipped into a frothy and frenetic frenzy by the ruling in D.Neb. that struck down Nebraska's marriage amendment. Professor Volokh has the analysis. I might disagree with some of it but I don't disagree with his post on the Huffington Post that says this is bad for same-sex marriage supporters.

The main thrust of the court's opinion is based on Romer v. Evans the US Supreme Court opinion striking down Colorado's law which prohibited all legislative, executive, or judicial action at any level of state or local government designed to protect homosexual persons. The court also ruled against the Amendment on 1st amendment grounds but I agree with Prof. Volokh that those are reaching quite a bit.

The Romer equal protection argument, however, is legit to me. What is the legitimate government interest in having a marriage amendment? The State of Nebraska argued that it's interests were to preserve marriage as the union between a man and a woman, to promote procreation and family life, and to ensure that Nebraskans are not forced to recognize same-sex marriages from other jurisdictions.

First, what is the interest in preserving marriage as the union between a man and a woman? I can't think of one unless I quote the Old Testament but then you'd just say, "Hey, but you wore a silk tie with your cotton suit and you ate shrimp when you were wearing it," and there'd go that argument. Would the state be any different if gays married?

Second, how does prohibiting same-sex marriage promote procreation? Will the gays automatically start breeding if they can't get married? The gays and lesbians I know have no interest in breeding with the opposite sex. They're homosexual! Plus, there are already way more children than the government can take care of. Is breeding a legitimate government interest in the 21st century?

Finally, if there is no legitimate state interest in the first two, there can't be a legitimate state interest in the third point, not recognizing same-sex marriages from other jurisdictions.

Despite my agreeing with the decision, I think it's a bad one at this point. The wingnuts are already fired up about the "out of control, activist" federal judiciary. This only puts coals on the fire.

Posted by Half-Cocked at May 13, 2005 12:14 AM

Comments

i think it's a bad decision too. a new try will be on the ballot just in time for the 2006 elections.

Posted by: julee at May 17, 2005 11:31 AM