..::Nebraska Democratic GLBT Caucus

Once again, the term, activist judges, has come back into vogue. In the past, the term was commonly used by the right wing whenever issues of civil liberties or rights were at stake. The right loves to keep the U.S. Constitution in mothballs, with its meaning limited to the morals and values of 18th century America. The America that embraced slavery, kept women away from the polls and unable to retain their rightful earnings, and pursued a policy of Manifest Destiny wherein indigenous people were not citizens in their own land. The right uses the term 'activist judge' to demean the centuries' long tradition of interpreting the law in the contemporary world.

During my frequent discussions with fellow Democrats, the recent decision of Judge Joseph Bataillon regarding Nebraska's Defense of Marriage Amendment came up as a fine example of an activist judge redefining marriage through court decisions. Let me clarify, the May 12th ruling did NOT legalize same-sex marriage in the state of Nebraska.

The Defense of Marriage Amendment that became Section 29 of the Nebraska constitution had provided that "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 similar same-sex relationship shall not be valid or recognized in Nebraska." It was the contention of the plaintiffs, Citizens for Equal Protection, Nebraska Advocates for Justice & Equality, and ACLU Nebraska, that Section 29 denied same-sex couples and their advocates an opportunity to convince members of the unicameral that same-sex relationships deserve some of the legal protections afforded to other relationships. In other words, Section 29 was 'a bill of attainder,' and that same-sex couples and their advocates could not avail themselves of the democratic institutions of this state to request simple rights like the ability to visit a partner in the hospital, to arrange for a funeral in case of death, to petition the legislature to pass laws eliminating discrimination in employment, housing, and a myriad of other issues.

So what is a bill of attainder? "The Bill of Attainder Clause was intended not as a narrow, technical (and therefore soon to be outmoded) prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function or more simply - trial by legislature." U.S. v. Brown, 381 U.S. 437, 440 (1965).

"Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation." James Madison, Federalist Number 44, 1788.

The Bill of Attainder Clause essentially means the government cannot pick and choose who is affected by a law. Nebraska's Defense of Marriage Amendment did just that. It said that same-sex couples must be singled out and kept from seeking any kind of redress for discrimination, be forbidden from the governmental institutions that create the basis of an ordinary civil life.

Judge Bataillon stated in his decision, "The court finds Section 29 is a denial of access to one of our most fundamental sources of protection, the government. Such broad exclusion from 'an almost limitless number of transactions and endeavors that constitute ordinary civil life in a free society' is 'itself a denial of equal protections in the literal sense.'"

I hardly find this decision to be of an activist nature! It expresses one of the fundamental tenets of a free society – Equality Before the Law. When we embrace this concept of fairness, we do not modify it by saying, "Except for the gay, lesbian, bisexual, transgendered community." When we do start modifying 'Equality Before the Law,' we destroy its foundation, particularly when we speak of the gay community. Who can prove they are not gay? Perhaps you have a son who likes to dance, does that mean he's gay and now his employer can fire him without cause? Perhaps your grandmother ran cattle out on a Sandhills ranch, does that mean she's gay and shouldn't be allowed into the assisted living apartment of her choice?

Right now, we have a very big issue before us concerning the U.S. Constitution. This is OUR constitution. It is the law of the land. If we allow our constitution to continue to be interpreted as a document granting rights to only heterosexual individuals, how can any of us continue to be assured access to the rights that serve as the basis of an ordinary civil life?

Let's travel back in Nebraska history and examine the record of Senator Kenneth Wherry, friend and colleague of Senator Joseph McCarthy. It was the 1940s and Democrats were very popular. Our party had ended the Great Depression, won World War II, secured legal recognition of unions, and, in short, changed life for the vast majority of Americans. Instead of struggling with poverty, Americans now looked toward opportunities in education, employment, trade...you name it, there was a lot of opportunity before us. All thanks to the Democratic Party.

What were the Republicans to do? How can you undo popular presidents? How do you stop trade unions from creating an equitable balance of power with big business? How do you silence your opposition?

Republican Senator Wherry hit upon the answer – accuse political foes of being homosexual, start a hunt for homosexuals working in all levels of government, including education, attack families by outing their homosexual members. It was the true underside of a very dark period in American history. It was the weapon of choice during the Red Scare. It was quite possible to weather a storm of accusations regarding communist affiliation, and some did. But it was impossible to refute homosexuality. How do you prove heterosexuality?

So here we are in 2005, and what does Karl Rove, President Bush's chief political advisor, do? He gloats over annihilating his Democratic opposition by accusing them of supporting the gay community, or by just mentioning they are gay. It works election after election. John Kerry all wrapped up with the 'gay marriage' bow delivered to the Pat Robertsons, Jerry Falwells, and their ilk. And, what happened? We, Democrats, lost!

How does the Democratic Party address this underhanded manipulation of the electorate? There's only one way, and that's to return to the concept of 'Equality Before the Law.' Quit allowing second class citizenship for gays and we will have just removed one of the biggest pieces of political blackmail ever created.

In closing, remember there is no such thing as gay marriage. There is no such thing as straight marriage. There is the institution of marriage, and that is it. We either embrace 'Equality Before the Law' for all, or for none!

First published in the Lancaster County Democrats newsletter, Summer 2005.