A tipoff judicial ruling

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U.S. District Judge for the District of Nebraska Joseph F. Batallion exemplifies why Senate Democrats covet the judicial filibuster. Appointed by President Clinton in 1997 and touted by Democrats as a mainstream jurist, Judge Batallion last week savaged an amendment to the Nebraska Constitution intended to block same-sex "marriage" in Citizens for Equal Protection Inc. v. Bruning.

Democrats hope to employ the threat of a filibuster to force President Bush to nominate philosophical clones of Judge Batallion and apostatize from his promises. Ending the judicial filibuster is urgent to prevent Democrats from smuggling a discredited agenda into imaginative constitutional decrees.

In 2000, citizens of Nebraska worried over a potential rising tide of judicial outlandishness in the interpretation of state constitutions regarding same-sex "marriage." Their fears were amply justified. In 2003, the Massachusetts Supreme Judicial Court insisted the framers of the state's 1780 charter intended to erase any distinction between same-sex and opposite-sex unions in Goodridge v. Department of Public Health. Before that caper, the Hawaii Supreme Court had tortured the meaning of the state constitution in favor of same-sex "marriages."

Approved by more than 70 percent of the popular vote, the Nebraska amendment provides that "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 relationships shall not be valid or recognized in Nebraska." Like all other provisions in the Nebraska Constitution, the same-sex "marriage" amendment (section 29) would trump conflicting state statutes enacted by the legislature, just as the U.S. Constitution defeats a contradictory federal law. Indeed, the whole purpose of a constitution is to place certain subjects beyond alteration by simple legislative majorities.

Judge Batallion absurdly maintained that section 29 encroached on First Amendment rights of freedom of speech and association and to petition government for a redress of grievances by handcuffing Nebraska's legislature from enacting a "gay rights" agenda. That political disadvantage is inherent in the idea of a constitution itself. Nebraska also places its thumb against an "anti-gun" agenda by enshrining the "right to keep and bear arms" in Article I, section 1 of its constitution.

Similarly, proponents of a bicameral legislature are handicapped by Article III, section 1 which mandates a unicameral body.

In Gordon v. Lance (1971), the U.S. Supreme Court upheld the constitutionality of a provision in West Virginia's state charter requiring approval of 60 percent of the voters in a referendum to incur bonded indebtedness or increase tax rates. Writing for the court, Chief Justice Warren Burger tacitly scoffed at the idea big spenders were denied a First Amendment right to seek tax increases by simple legislative majorities.

In sum, Section 29 leaves homosexual rights champions with the same political challenge as every other group opposed to a Nebraska constitutional provision. It is indistinguishable from the challenge Section 29 supporters confronted in passing the initiative. And Nebraska's constitution, unlike the supermajority threshold sustained in Gordon, can be amended by simple popular majorities.

Judge Batallion keenly relished the opportunity to ax Section 29. Accordingly, he declined to await a definitive interpretation by Nebraska state courts as the U.S. Supreme Court has repeatedly instructed should be done.

Instead, he concocted fanciful applications to create rather than avoid difficulties: "Many social or associational arrangements run the risk of running afoul of the broad prohibitions of Section 29. Among the threatened relationships would be those of roommates, co-tenants, foster parents, and related people who share living arrangements, expenses, custody of children, or ownership of property." But as Justice Samuel Miller lectured in United States v. Lee (1882): "Hypothetical cases of great evils may be suggested by a particularly fruitful imagination in regard to almost every law upon which depend the rights of the individual or of the government, and if the existence of laws is to depend upon their capacity to withstand such criticism, the whole fabric of the law must fail."

Judge Batallion faulted Section 29 for an alleged invidious intent to subjugate homosexuals in the political domain. Voters, however, were not shown to have supported the measure because of animosity or hatred. Moreover, many heterosexuals salute a "gay rights" agenda, and their ability to succeed politically is equally blunted.

The "mainstream" Democrat jurist also preposterously concluded that Section 29 constituted a prohibited "bill of attainder" by inflicting punishment on homosexuals, i.e., saddling them with the same rules that governed the amendment's adoption in seeking repeal. He likened such equality to a punitive "disfranchisement" of homosexuals for crimes, a ludicrous analogy more to be marveled at than indulged.

Judge Batallion repeatedly proclaimed neutrality on the constitutionality of same-sex "marriage" laws. But to borrow from "Hamlet," methinks the judge protested too much. His warped opinion bespeaks a subtextual intent to promote a homosexual rights agenda Democrats generally applaud. The judicial filibuster aims to force President Bush to populate the federal judiciary in Judge Batallion's image.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.