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More Judicial Advocacy of Homosexuality

Yesterday it was reported that a federal judge in Lincoln, Nebraska struck down Nebraska’s recent constitutional amendment protecting marriage from homosexual appropriation. Sayeth the robed master:

“[T]he court finds that the deprivation occasioned by the passage of [the amendment] is the deprivation of the right to associational freedom protected by the First Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution and the right to petition the government for redress of grievances, which encompasses the right to participate in the political process, also protected by the First Amendment.”

Read the opinion here. That language makes it sound as though homosexuals have been disenfranchised completely. But such shrill demagoguery is standard operating procedure these days. The plain language of the amendment makes clear that the people of Nebraska intend to both define marriage traditionally and to protect encroachment on that definition by stopping the benefits of marriage (spousal insurance coverage, survivor benefits, etc) from accruing to homosexual couples regardless of what Orwellian appellation they chose to describe their relationship (domestic partnerships, civil unions, etc).

The First Amendment provides that "Congress shall make no law…abridging the freedom of speech…or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The Court notes that two separate laws favoring homosexuals have died in the state legislature after it was determined that they would contravene the marriage amendment. Thus, the plaintiffs here (the usual suspects) argue that they can no longer assemble for the purpose of promoting their agenda and can no longer petition the legislature. But this is plainly not so.

A quick perusal of Nebraska’s political scene belies the disenfranchisement alleged by the plaintiffs and embraced by the Court. The amendment in question was proposed by a coalition of groups defending marriage by petition drive, placed on the general ballot and passed by over 70% of the state’s voters. It appears that this is not uncommon. Over 120 amendments have been ratified in Nebraska since 1920. Further, the vast majority of those originated in the allegedly inaccessible state legislature rather than through ballot initiative. These amendments have addressed many substantial issues, such as the creation of the unicameral legislature, the appointment (not election) of the secretary of state and attorney general, the selection and term of office of state judges, public school financing and the exclusion of state funds form private schools, and, significantly, authorizing the Legislature to call special elections to submit proposed constitutional amendments to the electors. By the Court’s reasoning, every group on the losing end of one of those struggles has been disenfranchised and denied Due Process.

Nebraska currently has at least two amendments being proposed. One legalizes some gambling and another guarantees a right to hunt and fish. If both amendments pass, will opponents of gambling and a coalition of gun control advocates and environmentalists find similar support in federal court? Are we to say that all federal gun-control advocates are disenfranchised because the Second Amendment clearly provides for a right to own a gun? Are we to abandon tort reform because the Seventh Amendment guarantees a civil jury trial? Is there no hope of abolishing the federal income tax in favor of a better plan because of the Sixteenth Amendment? The Court’s ruling seems to ensure that losing a pitched political struggle determined at the polls is no longer to be tolerated.

Clearly, other political subdivisions of minority status have managed to advance their agendas despite existing constitutional hurdles. But this is not other groups. This is about homosexuals, the new chosen people of the messianic judiciary. Theirs is not a mere right to be heard, but to be accommodated. Obviously, the alleged judicial principle that political setbacks equate to harm is a farce. The judge in this case has simply parroted the unalterable orthodoxy that lies at the cold, dark heart of Romer and Lawrence: homosexuality is good and opposition will not be tolerated even if democratically expressed.

Advocates of the normalization of homosexuality are not being cut out of the political process. Indeed, it has functioned admirably for years in the ongoing Nebraska debate. Homosexuals emphatically lost that battle in the public sphere. They are still free to lobby and assemble, to elect sympathetic legislators and executive officers, to advertise in the media and gather petition signatures for an amendment to alter or abolish the marriage amendment. But the bar they must meet for ultimate success is necessarily higher, as happens to fringe groups that cannot muster consensus. But this outcome will clearly never be admitted by sympathetic judges.

A renegade judiciary autocratically removed the abortion debate from the public square years ago. Thursday, this same branch of government guaranteed that homosexuality will remain there until similarly enshrined. That process has now officially begun. If any democratic limitation on the forced normalization of homosexuality is now void, it is only a matter of time before homosexuals have their Roe.

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Comments (1)

Jason A.:

Niemann is back to his old self, skewering the judiciary. Oh, thank God! We've missed you brother. It must be the juices flowing from reading Men in Black.

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This page contains a single entry from the blog posted on May 13, 2005 9:13 PM.

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