THE BLOG
05/12/2005 07:48 pm ET Updated May 25, 2011

Nebraska Same-Sex Marriage Decision:

A federal judge in Nebraska has just struck down that state's no-same-sex-marriages constitutional amendment, holding that the amendment violates the U.S. Constitution. The opinion stresses that it only invalidates the state constitutional amendment -- the legislature remains free to statutorily recognize only opposite-sex marriages.

But the court's reasoning goes further than that: As I read the case, the judge's decision rests on the notion that limiting marriages to opposite-sex couples is irrational discrimination. And that would mean that neither state voters nor the state legislature may impose such limitations: Same-sex marriages would have to be recognized by every state.

I don't want to get into the technical legal arguments here. (Those who are interested can read them here; I thought it would be no favor to my cobloggers or the blog's readers to include all 25 paragraphs, dealing with the court's four legal arguments, in this post.)

Suffice it to say that this was not a decision that was somehow mandated by the constitutional text, or by the logic of the constitutional structure, or even by constitutional precedent. (The 1996 Romer v. Evans case is the strongest argument for the court's decision, but even it doesn't go nearly as far as this court did.) The most charitable interpretation of the judge's decision, I think, is that the judge was going quite a distance beyond existing law in order to achieve the result that he thinks is most fair, protective of minority rights, and consistent with what he sees as the principles underlying the constitution.

Here's my tentative prediction: The big winners from this will be the anti-same-sex marriage forces. There's enough public opinion against same-sex marriage already, among many Democrats as well as Republicans. But my sense is that voters will be even more strongly opposed to federal judges forcing on them a change to a fundamental social institution. And this wouldn't be just state judges setting up their own rules for liberal Hawaii, Vermont, and Massachusetts -- it would be a federal judge striking down opposite-sex-marriage only laws enacted by a 70%-30% vote. The "gays deserve equal treatment" argument will gain nothing from this decision. The "federal judges are forcing blue-state social values on the whole country" will gain plenty.

If the law really commanded the judge to do what he did, then I'd say that he had to follow the law. Even if, as I think, the judge's decision was wrong but he thought it was legally commanded, then I understand why he did what he did, though I don't agree with it.

But as someone who tentatively supports recognizing same-sex marriage -- though by legislative vote rather than by judicial command -- I don't see this decision as any occasion for joy; and I much hope (and expect) that the federal appellate court will overturn the judge's ruling.

On the other hand, if one of the Supreme Court Justices retires this Summer, this decision will likely make it easier for President Bush to get his nominee (whom I'll probably support) confirmed. So I suppose there's some good news here for conservativish same-sex-marriage supporters like me (and we do exist). But not a lot of good news, I think, for liberal same-sex-marriage supporters.