Nebraska fights for marriage between 'a man and a woman'

by Will Hall |

LINCOLN, Neb. (Christian Examiner) -- Nebraska filed a motion March 31 with the U.S. Court of Appeals for the 8th Circuit asking that judicial body to overturn for the second time a federal judge's nullification of Nebraska's Marriage Definition Amendment, passed by 70 percent of voters in 2000 to protect marriage as only between "a man and a woman."

The legal action was in response to the March 2 ruling by U.S. District Judge Joseph Bataillon, a Clinton appointee, who declared Nebraska's law an "unabashedly gender-specific infringement of the equal rights of its citizens."

In 2005 Bataillon also overturned the law but the 8th Circuit Court reversed him a year later.

On March 5 the 8th Circuit Court approved the state's emergency request to stay Bataillon's latest ruling which would have taken effect March 9 and allowed gay marriages. Additionally, the court added Nebraska's case to oral arguments scheduled for May 12 in Omaha that involve judicial activism in Arkansas, Missouri and South Dakota where voter measures also were overturned.

In January, the U.S. Supreme Court accepted cases from Kentucky, Michigan, Ohio and Tennessee after the 6th U.S. Circuit Court of Appeals upheld voter-approved initiatives in these states defining marriage as between one man and one woman. Oral arguments will be heard in April and a decision issued by June on two questions: whether the U.S. Constitution requires states to issue marriage licenses to same-sex couples, and whether states must recognize same-sex marriages performed in other states.

Same-sex marriage is legal now in 37 states plus the nation's capital, largely because of judicial activism:

-- 26 have had voter-approved amendments overturned by courts.

-- 13 still only allow marriage between one man and one woman. But among these, 10 have had a judge overturn the ballot measures and appeals are in progress.

-- 8 state legislatures passed laws making same-sex marriages legal (Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island and Vermont).

-- Voters in Maine, Maryland and Washington approved measures to legalize gay unions, as did the electorate in the District of Columbia.

Florida is appealing the overturn of their marriage protection law, but the U.S. Court of Appeals for the 11th Circuit put the action on hold until the Supreme Court rules on Kentucky, Michigan, Ohio and Tennessee. Alabama's traditional definition of marriage also was voided but the state's highest court has intervened to stop gay marriages.

Not surprisingly, court partisanship has been evident in the multiple federal court rulings that overturned voter approved amendments to define marriage in traditional terms. The trend of dramatic judicial support for homosexual marriage coincides with changes President Obama has been able to effect in the makeup of the courts, in particular the U.S. Courts of Appeals.

The New York Times reported Sept. 13, 2014, that for the first time in a decade "judges appointed by Democratic presidents considerably outnumber judges appointed by Republican presidents" and that Democratic appointees who hear full cases "now hold a majority of seats on nine of the 13 United States Courts of Appeals." Eight of those nine, now liberal courts, were reshaped by the president during his six years in office. Only the 9th Circuit in San Francisco was predominately liberal when he won election.

Four remain solidly conservative, including the 5th (New Orleans, Louisiana), 6th (Cincinnati, Ohio), 7th (Chicago, Illinois) and 8th (St. Louis, Missouri).