Romering what your sow; Lawrencing the bed you make

Nebraska is back in the title hunt for most outrageous judicial opinion, this time on Federal Judge Joe Bataillon's Court decision striking down the Nebraska Defense of Marriage constitutional amendment. The 30% or so of Nebraskans who opposed the amendment five years ago now feel vindicated because their own lawsuit proved their point, hardly a unbiased evaluation of the original law. Volokh Conspiracy sees this decision, while wildly off base, as the poisoned fruit of the 1996 US Supreme Court decision Romer v. Evans {ruling Colorado State Constitutional amendment that prohibited municipalities from enacting anti-discrimination laws to protect sexual orientation. It is ironic that the gay favoring Judge Bataillon agrees with Justice Kennedy in his Romer majority decision that the gay-exclusion constitutional amendment present impermissible restrictions on their right to seek change in the laws (Judge Bataillon decision page 29) when gay activists know their best shot lies in challenging legal barriers inhibiting them in court. See Judge Bataillon decision note 10 page 29 {heightened scrutiny of laws that restrict political processes ordinarily expected to repeal of undesirable legislation, citing United States v. Carolene Products, 304 U.S. 144, 152 n.4 (1938)}. Justice Scalia's Romer dissent prophesies exactly what has resulted in Lawrence v Texas and Judge Bataillon's insolent ruling: the prestige of (the Supreme Court) strongly (endorses) the proposition that being anti-homosexual is as reprehensible as being a racial or religious bigot. "(The Supreme Court) has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality.. is evil." Scalia in his Lawrence dissent anticipates exactly Judge Bataillons wholesale destruction of the Nebraska amendment since the Lawrence majority's reasoning striking down sodomy laws "leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples." Judge Bataillon and his ilk wont come out and say he wants gay marriage, rather he merely wants a level playing field for this disadvantaged group, as did the sodomist in Lawrence. There is little to stop the freight train of judicial precedent that justifies its decisions with the ends of increasing freedom for homosexuals. How much to incorporate freedom of action for homosexuals is best left to the people. Because "(they) may feel (enough) disapprobation of homosexual conduct to disallow homosexual marriage, but (also) to (de)-criminalize private homosexual acts–(through appropriate legislation)..(Courts may )pretend that they also possess (the) freedom (to draw boundaries of action. If you fear gay marriage, believe it that it is a lawsuit away from reality, witness Canada and Massachusetts.