The proponents of the Federal Marriage Amendment now occupying the Senate's time and attention consistently say that the amendment is about "protecting traditional marriage", not about discriminating against same-sex couples or taking away their rights. As has been described in many places, this is demonstrably false, as the proposed FMA would wipe out same-sex marriage in Massachusetts, as well as civil unions in Vermont.
But one of the key arguments of the FMA proponents is that we need to protect traditional marriage from unelected, activist federal judges who strike down the will of the people. And the prime example that has surfaced (after Massachusetts) is, oddly, Nebraska.
This was the
President yesterday:
Last year, a federal judge in Nebraska overturned a state constitutional amendment banning same-sex marriage, an amendment that was approved by 70 percent of the population. And at this moment, nine states face lawsuits challenging the marriage laws they have on the books.
This was Sen. Wayne Allard (R-CO) yesterday on the Senate floor:
Likewise, State constitutional amendments are under attack in Federal court. For example, in Nebraska , a Federal district court in 2005 found unconstitutional a State constitutional amendment passed by 70 percent of Nebraska voters. While this cases is on appeal to the Eight Circuit--and we hope the decision will be correctly overturned--I find it chilling that the will of an entire State, expressed democratically, may be undone by a Federal judge in an unelected position and tenured for life.
To hear the President and Sen. Allard describe it, a federal judge in Nebraska told the people of that state that they could not pass a law or a state constitutional amendment banning same-sex marriage. Implied in these statements is the idea that Nebraska has been forced to perform and recognize same-sex marriage by a federal judge.
But that's just not the case. An examination of the Nebraska decision - Citizens for Equal Protection, Inc. v. Bruning - reveals that the federal judge in Nebraska held nothing about same-sex marriage, but rather struck down a highly discriminatory constitutional amendment which deprived homosexuals and other non-married Nebraskans of the right to petition their government for the redress of grievances.
In 2000, the voters of Nebraska passed a state constitutional amendment that read:
Only marriage between a man and a woman shall be valid or recognized in Nebraksa. 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 Nebraksa.
In 2003, a Nebraska state senator introduced a bill which would amend state law to allow same-sex domestic partners to make funeral and organ donation decisions for one another. That Senator asked the State's Attorney General for an opinion about whether his bill would be constitutional. The AG responded that it would not be constitutional because it would create rights for same-sex couples which would be "placed on the same plane as rights which arise as a consequence of the marital relationship." The proposed legislation, the AG wrote, "would be giving legal effect to a same sex relationship, thereby validating or recognizing it."
In October 2002, Donna Colley and Margaux Towne-Colley wrote to Gov. Johanns expressing concern about health insurance, adoption, and inheritance issues in connection to the couple's recent move from Vermont to Nebraska and the subsequent birth of a child in Nebraska. The Governor responded
I am sure you are aware of my beliefs about the sanctity of marriage, and that I supported the constitutional amendment providing that Nebraska would not give legal recognition to civil unions or domestic partnerships or other same-sex relationships. With the adoption of that constitutional amendment, I see no resolution for you of the issues you discussed.
What the Nebraska federal judge's opinion is about is this deprivation of the basic civil rights of same-sex couples in Nebraska, under the amendment, to petition their government. Quite apart from definining marriage, the Nebraska amendment prohibits same-sex couples from even petitioning their state or local governments for the kind of rights and benefits enjoyed by people in dozens of states.
The problem with Nebraska's amendment isn't that it defined marriage as being between one man and one woman, as both the President and Sen. Allard would have you believe. The problem with Nebraska's amendment is that it curtails the political rights of homosexuals and their supporters in Nebraska.
From the decision:
In its brief, the State admits that "[p]laintiffs have full acces to the political process and may obtain the rights via legislation which married couples enjoy, so long as those rights are not premised on recognition of a same-sex relationship." The fallacy of the State's circular logic is apparent. In making this statement, the State concedes that full access to the political process and enjoyment of the rights of married couples will be forbidden if premised on the recognition of a same-sex relationship. That evidence shows that the State regards any proposed legislation that would elevate a same-sex cople to the "same plane" as a married couple amounts to "a recognition" of the same-sex relationship. Marital status confers many rights that single people - gay or straight, parents or not - do not possess. Notwithstanding policies preferring marriage, there are or may be legitimate reasons, consistent with the goals of promoting stable family relationships and protecting children, for extending some rights or obligations traditionally linked to marriage to other relationships. A blacket prospective prohibition on any type of legal recognition of a same-sex relationship not only denies the benefits of favorable legilsation to these groups, it prohibits them from even asking for such benefits....
This is tantamount to denial of access to the means to effect any sort of social or political change. The knowledge that any such proposed legislation violates the Nebraska Constitution chills or inhibits advocacy of that legislation, as well as impinging on freedom to join together in pursuit of those ends. Proponents of any legislation that would enhance same-sex partner's rights (including awarding benefits, awarding adoption, etc.) must surmount the hurdle of passing a constitutional amendment. This creates a barrier to participation in the political process that no minority population is ever likely to surmount.
Nebraska's amendment wasn't only about definining traditional marriage. It was about discriminating against homosexuals by taking away their civil rights.