2006

Anyone who doesn't understand why President Bush's nominees to the Appellate Courts must be approved should read the decision by District Judge Joseph Bataillon declaring as unconstitutional an amendment to the Nebraska state constitution that protects marriage.

This ruling strikes at the right of the people to defend themselves against judicial activism through the amendment process. If that right is threatened, the people must have judges on the higher courts who will slap down activist lower courts.

Bataillon would have us believe that Nebraska's marriage amendment violates freedom of speech, association, religion, the right to petition the government, and is an illegal bill of attainder.

According to Bataillon: "The result of the amendment is to discourage or impair the formation of groups and/or associations to lobby for changes in legislation that would benefits same-sex couples." The amendment forces proponents of legislation to "surmount the hurdle of passing a constitutional amendment" and therefore, according to Bataillon, creates an unconstitutional "barrier to participation in the political process." By this reasoning any amendment to a state or federal constitution could be ruled unconstitutional since reversing an amendment is harder than passing a law.

Is there any evidence that gay activists have been denied the right to free speech? To form associations? To raise funds and mount a campaign to change the state constitution in their favor? None. But according to Bataillon "discouraging" someone is the equivalent of "disenfranchising" them. Of course, it is discouraging when you lose 70.1 percent to 29.9 percent but since when is it unconstitutional to win a referendum?

Bataillon ruled that the amendment was an unconstitutional bill of attainder (a law which punishes a group of people without a trial) because "it is directed at gay, lesbian, bisexual and transsexual people and is intended to prohibit their political ability to effectuate changes opposed by the majority." It is certainly difficult to "effectuate changes" in laws when 70 percent of the population is opposed, but the amendment was designed to protect Nebraskans from activist judges. Having watched as activist judges redefine marriage in Massachusetts and impose civil unions in Vermont, the people of Nebraska expended the effort required to amend their state's constitution to prevent a similar outcome.

If anything, Bataillon's decision has proved that Nebraskans' fears were totally justified.

Bataillon accepted the plaintiffs' argument that they are only seeking "a level playing field" so they could advocate for legislation to allow same-sex couples such benefits as hospital visitation. This is a ruse. Gay activists don't want a level playing field. Their ultimate goal is the creation of a situation under which anyone who challenges any aspect of their agenda is publicly labeled an intolerant bigot and subjected to social ostracism and legal sanctions. In particular, they want to use the public schools to forward this agenda and prohibit parents from objecting.

Listen carefully to gay activists. Notice how they continually use the words "bigot," "intolerant," "prejudice," and "hate" to describe the sincerely held beliefs of those who oppose their agenda. But what is the "bigotry" to which they object? It is the belief that God has laid out a plan for sexual behavior that does not include same-sex relationships. What do gay activists condemn as "intolerance"? The conviction based on substantial evidence that same-sex attraction is not genetically determined, but a preventable and treatable condition. Are those who work to protect children from gay proselytism in public schools "prejudiced" or prudent? It is love not hate that motivates those who work with men and women who want out of the gay lifestyle.

If you want to understand the ultimate objectives of gay activists, look at Massachusetts where a parent of a kindergartener was arrested for demanding that he be informed when his child's teacher was pushing the gay agenda. The father simply wanted the option of removing his child from the class. Although the law in Massachusetts gives parents that right when sex education is involved, the Lexington schools argued that now that marriage had been redefined by courts, parents had no rights to object or even be notified because the instruction wasn't about sex, but civil rights.

Judicial tyrants are happy co-conspirators with gay activists. By accusing the good people of Nebraska of "animus" (as Judge Bataillon did) they are laying the ground for legal sanctions against those who defend traditional marriage.

The battle over the Bush judicial nominees isn't just about seven judges. It is about the right of a free people to protect themselves from the arrogance of an out-of-control judiciary. It is a battle that must be won.

Dale O'Leary is a writer, pro-family activist and educator living in Rhode Island. Her e-mail address is daleoleary@thefactis.org.

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