SuperDOMA Struck Down

Three cheers for the (endangered?) activist judiciary: U.S. District Judge Joseph F. Bataillon -- a Clinton appointee who shares a birthday with me -- has thrown out Section 29 of the Nebraska Constitution which reads:

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 relationship shall not be valid or recognized in Nebraska.

Bataillon basically gave Lambda Legal everything it wanted in his decision, finding that the provision not only violates the First Amendment and the Equal Protection Clause of the 14th Amendment but even constitutes an unlawful "bill of attainder." (Talk about a stretch.)

In 2000, Nebraska was one of the first states to put a "Defense of Marriage" law on steroids -- that is, to bar same-sex civil unions and domestic partnerships as well as gay marriage.* The court draws attention to the typically ham-handed approach found in these bigot brigade initiatives, which uniformly overreach by (1) including any kind of same-sex relationship under the law -- i.e., not just romantic/sexual -- and (2) barring the legislature from granting any rights remotely related to those married spouses enjoy. (The text above may not say all that explicitly, but the court notes that the state Attorney-General consistently interprets Section 29 that way.)

We have repeatedly seen an unfortunate inability among the voting populace to spot these extreme laws when pulling the lever thinking they are merely banning "gay marriage." Even the President who claims DOMAs shouldn't be this strong ("I don't think we should deny people rights to a civil union, a legal arrangement, if that's what a state chooses to do so") still favors the Federal Marriage Amendment, which does the same thing.

This week's Nebraska ruling proves that, at least at the state level, the judiciary can resort to the U.S. Constitution to block the bare animosity against gays that lies at the heart of all superDOMAs. Should the FMA go into effect, there would be no such recourse.

* By the way, several news reports have claimed the Nebraska provision is the most anti-gay DOMA on the books, which was true at one point but no longer. See this old Bhaus post on the nasty law adopted by Ohio last Fall, or even this one on Virginia's own bigoted statute.