Bench Memos

NRO’s home for judicial news and analysis.

RE: Nebraska


Maggie Gallagher:

There certainly is animus on display in these decisions, but it comes from judges toward the American people. The majority in the Massachusetts court declared, baldly, that only animus could explain the desire of the people of Massachusetts to protect marriage as the union of husband and wife. In California, a trial court judge actually found that passing a civil unions bill indicated the kind of animus on the part of Californians toward gay people that justified striking down that state’s marriage laws. And in Nebraska, a federal judge said that the state marriage amendment “goes so far beyond defining marriage that the court can only conclude that the intent and purpose of the amendment is based on animus.” Most ludicrously, this federal judge defined Nebraska’s constitutional amendment as a “bill of attainder,” which means he called the amendment an attempt to legislatively punish citizens without trial.

I first testified on a federal marriage amendment before the Senate in fall of 2003. The man who sat on my right was Jon Bruning, the attorney general of the state of Nebraska. He testified that, based on some preliminary court rulings, he expected a federal judge would soon overrule Nebraska’s state marriage amendment.

Democratic senators in the room assumed a pose of powerful skepticism about the motives of those like us who supported a Marriage Protection Amendment. They pooh-poohed the idea there was any judicial threat to marriage. No court had then ruled in favor of gay marriage, they noted. Our fears of judicial re-invention were unwarranted, if not hysterical then basely political. And besides, they said, none of their constituents were talking about this issue, nobody really cared about it.



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