Right Side of the Rainbow

The call by many gays and lesbians for Government by Judicial Fiat is not fairing well these days:pocketpc game crack

Courts handed victories to gay-marriage opponents in two states Friday, reinstating Nebraska’s voter-approved ban on same-sex marriage and throwing out an attempt to keep a proposed ban off the ballot in Tennessee.

In the Nebraska case, the 8th U.S. Circuit Court of Appeals overturned a judge’s ruling last year that the ban was too broad and deprived gays and lesbians of participation in the political process, among other things.

Seventy percent of voters had approved the ban as a constitutional amendment in 2000.

It went further than similar bans in many states in that it also barred same-sex couples from many legal protections afforded to heterosexual couples. For example, the partners of gays and lesbians who work for the state are not entitled to share their health insurance and other benefits.

New York-based Lambda and the ACLU’s Lesbian and Gay Project sued, arguing it violated gay rights.

The court, however, ruled that amendment ”and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.”

The 8th Circuit’s opinion is here. It reads in part:pocketpc game crack

In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson, 409 U.S. 810 (1972), when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed “for want of a substantial federal question.” (Emphasis added.) There is good reason for this restraint. As Judge Posner has observed:

“This is not to say that courts should refuse to recognize a constitutional right merely because to do so would make them unpopular. Constitutional rights are, after all, rights against the democratic majority. But public opinion is not irrelevant to the task of deciding whether a constitutional right exists … If it is truly a new right, as a right to same-sex marriage would be … [judges] will have to go beyond the technical legal materials of decision and consider moral, political, empirical, prudential, and institutional issues, including the public acceptability of a decision recognizing the new right.”