Gay marriage ban: Judge upholds Nevada Constitution

Last week, U.S. District Chief Judge Robert Jones denied a federal challenge to Nevada's ban on same-sex marriage. Lambda Legal Defense Fund attorney Tara Borelli vows to appeal the ruling, in which Judge Jones upheld a plank in the Nevada Constitution that, she argues, treats gay couples as "second-class citizens."

"We think this decision is not only out of step with where the country is headed but also completely wrong on the law," Ms. Borelli said.

Judge Jones, in Reno, ruled Nevada has "a legitimate state interest" in maintaining the traditional institution of marriage and that excluding the recognition of same-sex couples is "rationally related to furthering that interest." The question "is not the wisdom of providing for or recognizing same-sex marriages as a matter of policy," Judge Jones wrote.

Rather, he found the question was whether Nevada retains the authority to prohibit recognition of marriages from other states "if those laws do not conform to Nevada's one-man-one-woman civil marriage institution."

The Nevada lawsuit, filed in April, argues the 2002 voter-approved state constitutional amendment prohibiting same-sex marriage in Nevada violates the Equal Protection Clause of the U.S. Constitution. Same-sex couples are still discriminated against by hospital officials and police officers because they aren't legally recognized as spouses, the lawsuit argues.

The temptation is to cheer or decry the outcome (you'll probably get a chance to do both, given the odds that the 9th U.S. Circuit Court of Appeals will overturn Judge Jones) based on the result desired, regardless of how that result is reached. But at that point, an old warning is worth remembering: A court that can give you anything you want can just as easily take away anything you cherish.

We believe Nevada - a tourist-dependent state - was unwise to enact a constitutional amendment that could make gay couples feel less welcome here. While permitting the registration of domestic partnerships is a step in the right direction, the plaintiffs make a good point: These couples still find it much harder to qualify for dependent benefits, and so forth.

But while we might therefore welcome, in the long term, the result sought by plaintiffs, we disagree when Ms. Borelli says Judge Jones is wrong on the law. Judge Jones has, in fact, just ruled to uphold not merely "the law," but the Nevada Constitution as recently amended by Nevada voters.

The U.S. Constitution - under which the action is brought - instructs that the several states must retain authority to establish different sets of laws best suited to their residents, whereupon Americans may "vote with their feet" by relocating to jurisdictions with legal codes that better suit them. Thomas Jefferson specifically warned that if the states ever became subsidiary jurisdictions of a uniform central authority, like the "Departments" of France, America would degenerate into a Bonapartist tyranny.

If planks of a constitution enacted by voters can be tossed out willy-nilly by a court determined to enforce what it thinks the law ought to be, then the people have a right to ask whether we have passed from a republic with government powers limited by being divided among the three branches and the several levels, into a dictatorship of the unelected bench.

If the state constitution is to be changed - even if we lament the slowness of the process - it should be left to the legislative branch and the wisdom of the people at the polls.