Why Did Hagel Vanish for Marriage Vote?

The “conventional wisdom” just can’t explain Nebraska.

The “conventional wisdom” (read: liberal media spin) on last week’s U.S. Senate vote regarding the Marriage Protection Amendment to the U.S. Constitution was that the vote was scheduled for purely political reasons—to mobilize the Republican Party’s conservative base for the November midterm congressional elections. A majority of Democrats opposed the “cloture” motion to bring the amendment to a real vote. They charged that the two days of debate on the measure were a waste of time, given the urgency of issues like rising gas prices.

But if the marriage amendment was brought up to boost Republicans, Nebraska’s Republican Sen. Chuck Hagel must not have gotten the memo. He didn’t even bother to show up for Wednesday’s vote on the amendment. He later issued a statement saying that he would have voted to end debate on the measure (as he did in 2004)—but added that he would have voted against its passage because “it’s a state issue and should stay that way,” as the Associated Press put it.

While this has been part of the “conventional wisdom” of those opposing the amendment, it is an extremely odd thing for a senator from Nebraska to say. It was in Nebraska just over a year ago that a federal judge, Joseph F. Bataillon, took one look at how the voters of the state had handled this “state issue” and said, in effect, “I don’t like it. Change it!” In his ruling in Citizens for Equal Protection v. Bruning, he overturned not just a law but a provision of the Nebraska state constitution—one that had been adopted by over 70% of the people of Nebraska in a 2000 referendum called Initiative 416.

Bataillon claimed not to be ruling that Nebraska’s definition of marriage was itself unconstitutional. Instead, he ruled that elevating such a definition to the constitutional level violates (try not to laugh) the First Amendment rights to “freedom of speech” and “to petition the government.” How? By inhibiting the advocates of same-sex “marriage” from seeking it, or its benefits, in the legislature, using statutory provisions alone.

The catch-22 is that this logic would make it impossible for states to ever amend their constitutions, because every constitutional amendment has the effect of “disenfranchising” those citizens who oppose the policy choice enshrined in the amendment.

What this case was really about is one judge taking the power to define marriage out of the hands of the people, in order to return it to the hands of judges. Liberals make much of the right of judges in our political system to exercise “checks and balances” by overturning legislative and executive decisions on constitutional grounds. But this power of constitutional interpretation is itself subject to “checks and balances”—the ultimate of which is to amend the constitution itself. If even that power is taken away (as Judge Bataillon did in Nebraska), then we live under a judicial dictatorship.

Nebraska’s Democratic senator, Ben Nelson, seems to have understood this better than Hagel. He was one of only two Democrats to even vote in favor of voting on the Marriage Protection Amendment (the other was Robert Byrd of West Virginia). This is despite the fact that the Marriage Protection Amendment’s language was crafted in such a way as to make it a compromise that is entirely consistent with the stated position on marriage of the vast majority of Democratic politicians.

Most Democrats say they believe that marriage is the union of a man and a woman and that courts should interpret laws, not write them—both things that the Marriage Protection Amendment would insure. Many Democrats think that states should be allowed to decide whether or not to adopt “civil unions” through the democratic process—a policy option which the federal amendment would allow (but which Nebraska voters chose to reject). Those who hold such views, but nevertheless oppose the Marriage Protection Amendment, are the ones who must be playing politics.

Anyone who thinks that federal judges will allow marriage to remain “a state issue” just hasn’t been paying attention—especially in Nebraska. The Marriage Protection Amendment is the only way to protect real “wisdom”—the common-sense position of Nebraska voters—from being overturned. And that’s something which the Democrat Nelson understands, and Republican Hagel doesn’t—“conventional wisdom” or no.