A Stitch in Haste

It's astounding just how bad a federal District Court's website can be, but the United States District Court for the District of Nebraska is pretty lame — no sign anywhere of the decision by the trial judge striking down Nebraska's anti-gay constitutional amendment (or any other opinions, for that matter).

Fortunately we have the omni-blogging Howard Bashman to rescue us. Here is the PDF (43 pages). I will read it this weekend and report back.

From the media accounts, this was a substantive constitutional ruling and, from a very cursory perusal, holds that Nebraska's "Amendment 29" is essentially identical to Colorado's infamous "Amendment 2" held unconstitutional by the Supreme Court in Romer v. Evans, 517 U.S. 620 (1996). That's especially noteworthy since the key holding in Romer is that anti-gay bigotry, without more, does not satisfy even the lowest level of judicial scrutiny, called "rational basis" review. This is a powerful legal argument that makes overturning same-sex marriage bans much easier.

On the other hand, it is important to keep in mind that this ruling says nothing about requiring or even authorizing same-sex marriage in Nebraska. It merely strikes down the amendment that prevents gays from trying to win marriage rights in the legislature (i.e., the case preserves that same "democratic process" that anti-gay forces claim to cherish).

But anyway, for now I want to point out something else before the bigots do. As I noted in this post, this Nebraska case is actually the first gay-marriage ban struck down by a federal judge. The other cases — Vermont, Massachusetts, New York — have all been state judges.

All the nonsense spewed out by the bigots about "activist judges" and the "out of control federal judiciary" has been a red herring — until now. So hunker down and prepare for the swarm of complaints and rants from gay marriage opponents, especially during this time of confirmation battles, the "nuclear option" and the ever-increasing speculation about Chief Justice Rehnquist.

Oh, and once again everyone tip their hats to the heroes of Lambda Legal.

Other early thoughts from Law Dork.

Will report back when I've read the opinion completely.