When I saw this headline last Nov. 18—“Judge who tossed ban will hear marriage suit”—I remember thinking, ‘that can’t be right; what’s fair, impartial or objective about having a judge who is likely predisposed on the key, substantive issues of constitutionality decide another case, which involves essentially the same issues? What kind of a judicial process allows that?’
U.S. District Court Judge Joseph Bataillon ruled in 2005 that Article I, section 29 of the Nebraska State Constitution, which prohibits government recognition of same-sex marriage and marriage-like, same-sex relationships, violates the U.S. Constitution. His decision was subsequently reversed by a panel of the U.S. Court of Appeals for the Eighth Circuit.
It’s a fact though, that nearly a decade later, a new challenge to Nebraska’s constitutional amendment—Waters et al v. (Governor) Pete Ricketts and (Attorney General) Doug Peterson, et. al—was assigned to Judge Bataillon. Deja vu. What’s just about that? In 2005, this judge arrogantly opined that Nebraska’s marriage amendment, approved by 70 percent of the voters, could only have been motivated by animus toward homosexual people.
A highly reputable and well-experienced federal-practice attorney of long acquaintance has persuaded me that my questioning and doubt are not justified and have no merit. The assignment of the case was undoubtedly part of the regular process of the federal courts, taking into account workload and scheduling. It happens. Get over it. Move on. So I have.
Since the new challenge was filed, the developments have been that Judge Bataillon took the deja vu path and again ruled Art. 1, sec. 29 of the Nebraska Constitution violates the U.S. Constitution; that the state Attorney General quickly sought a stay of the ruling pending an appeal to the Eighth Circuit; and that the appellate court granted the stay and further ordered that oral arguments on the merits of the case will take place May 12 in Omaha.
Another aspect of those developments is that the United States Supreme Court has scheduled oral arguments on similar issues of constitutionality on April 29. It will be interesting to see if the Eighth Circuit’s three-judge panel issues its ruling before the Supreme Court releases its ruling, anticipated for late June.
Doubt and questioning about the Supreme Court’s process and approach on same-sex marriage are pertinent; two of the justices have called it into question.
Keep this scenario in mind: last October the Supreme Court, sans additional comment, declined to review appeals from the fourth, seventh and tenth circuits—involving Utah, Oklahoma, Virginia, Indiana and Wisconsin—on the definition of marriage. That order let stand federal district court rulings and ended stays on same-sex marriage in those states. It also opened the legal door in the other states in those circuits.
At least one pundit referred to that development as the nine not being able to count to four, a reference to the process that requires at least four of the nine justices to vote to take an appeal. Given the Court’s ruling in 2013 that struck down a part of the federal Defense of Marriage Act, it was, at least for a while, a head-scratcher that there wasn’t a quartet of justices sufficiently anxious to tee-up further review on the definition of marriage.
All the uncertainty, speculation and intrigue notwithstanding, hundreds of same-sex marriages have occurred under law as a result of the Supreme Court allowing lower court rulings to stand.
But then the scenario had a new development Jan. 16 of this year; the Court announced it would consider an appeal of a ruling from the Sixth Circuit, which upheld the same-sex marriage bans of Kentucky, Michigan, Ohio and Tennessee. These are the arguments set for April 29.
The next high drama of a much anticipated Supreme Court ruling—this one on same-sex marriage—will grab national attention in late June, probably on the last day of the Court’s term.
But that’s not the whole story.
On Feb. 10, the justices voted 7-2 to reject a petition from Alabama to place a hold on a federal judge’s ruling that struck down the state’s law that defines marriage as the union of one man and one woman. Even though the Court already had announced it would be ruling on the constitutional issues, seven justices refused to preserve the status quo during pendency.
How does justice flow from such a scenario? Add it to what happened last October when the Court allowed same-sex marriages to proceed in three circuits.
If a majority of the Court has its collective mind made up, why bother with the charade of an oral argument? Alternatively, if there is some possibility that the right of states to define marriage would be upheld, what would be the legal status of same-sex marriages legally recognized in the interim?
In his dissent to the order refusing to preserve the status quo in Alabama, Justice Clarence Thomas aptly described the situation: “This is not the proper way to discharge our (constitutional) responsibilities. And it is indecorous for this court to pretend that it is.”
And finally… from a much different context: the Nebraska Legislature is firmly engaged in its current session, with a lot of legislation to consider. Overheard during a hearing on a bill of some questionable merit: “Bad legislation is like fish; it stinks from the head.” While it is anything but clear what that means, it does tend to make a point.
