Bench Memos

NRO’s home for judicial news and analysis.

For the First Time


A federal judge (Joseph Bataillon, a Clinton nominee) has struck down a state ban on same-sex marriage. Nebraska voters amended the state constitution to define marriage as the union of a man and a woman. The judge, following the reasoning of the Supreme Court’s decision in Romer v. Evans (1996), ruled that the amendment had infringed on the rights to political participation of advocates of same-sex marriage: They can’t get their way just by persuading the legislature, since they would also have to overturn the amendment. The reasoning, like the reasoning in Romer (which prevented localities from passing laws against discrimination against gays), strikes me as awfully shaky.

Here’s what Justice Scalia said in dissent from Romer: “The central thesis of the Court’s reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court’s opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle. For whenever a disadvantage is imposed, or conferral of a benefit is prohibited, at one of the higher levels of democratic decisionmaking (i.e., by the state legislature rather than local government, or by the people at large in the state constitution rather than the legislature), the affected group has (under this theory) been denied equal protection. To take the simplest of examples, consider a state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen. Once such a law is passed, the group composed of such relatives must, in order to get the benefit of city contracts, persuade the state legislature–unlike all other citizens, who need only persuade the municipality. It is ridiculous to consider this a denial of equal protection, which is why the Court’s theory is unheard-of.”


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