Judge Joe has the right to crow (but he won’t)

Judge Joe Bataillon is a really nice guy. I have objective proof of that assertion.

imagesLisa, my middle daughter, the one in China, told me what a nice man Joe was long before I knew Joe. She knew Judge Joe before I did because Lisa and one of Joe’s daughters, see here, went to Marian High School together and were good friends. Marian is an all-girls Catholic High School with a proud tradition in Omaha.

After I met Joe all those many years ago, I realized what Lisa meant. Joe is truly a good man. He always, and I mean always, seeks to do the right and fair thing even when others (like his church) push hard for Joe to do something different. Joe is indifferent to reversals by the Court of Appeals. His focus is doing what he believes is right.

Yesterday, when the Supreme Court declared that gay people had the Constitutional right to marry, Joe was vindicated. Since 2003, Joe had said essentially the same thing. See Waters v. Ricketts, No. 8:14CV356 (D. Neb., March 2, 2015) (“Nebraska’s “Defense of Marriage” Constitutional Amendment, Section 29, is an unabashedly gender-specific infringement of the equal rights of its citizens.”); Citizens for Equal Protection, Inc. v. Bruning, 368 F.Supp.2d 980 (D.Neb.2005) (” Section 29 does not merely withhold the benefit of marriage; it operates to prohibit persons in a same-sex relationship from working to ever obtain governmental benefits or legal recognition, a right they had before the passage of Section 29. If the purpose, as offered by the proponents of Section 29, were merely to maintain the common-law definition of marriage, there would be no need to prohibit all forms of government protection or to preclude domestic partnerships and civil unions. The court concludes that the plaintiffs have established that Section 29 is an unconstitutional bill of attainder.”); Citizens for Equal Protection, Inc. v. Bruning, 290 F. Supp. 2d 1004 (D. Neb. 2003) (denying motion to dismiss and stating, “Section 29 does not just withhold a benefit; it actually prohibits same-sex relationship couples from working to obtain governmental benefits. If the purpose, as offered by the defendants, of Section 29 is merely to maintain the common law definition of marriage, there would be no need to prohibit all forms of government protection or to preclude domestic partnerships and civil unions. I conclude that the plaintiffs have met the legal requirements for stating a claim of bill of attainder.”).

Judge Joe has the right to crow. But he won’t because he is also a humble man. Indeed, I feel fortunate to have Judge Joe as a colleague and a friend. By his actions, Judge Bataillon has offered us all a lesson in humanity. By the way, it is not his fault that I am a bad student.


11 responses

  1. Judges shouldn’t crow when they get a decision right. Judges are supposed to get decisions right. Constitutional interpretation is not rocket science. Since most of it is done by law clerks anyway, it probably can be done by trained chimpanzees.

    What Judge B CAN be proud of is having written a well-crafted opinion, without the pompous grandstanding that has become part and parcel of the tedious novellas published by our Supreme Court.

    You would know this better than I, Your Honor, but I have always been told that when you are right on the law and the facts, the opinion writes itself. But when a judge forces his personal opinion on the law, the opinion “doesn’t write,” and s/he makes comments that make lawyers snort their morning coffee through their noses.

  2. Law school exam!

    Suppose I have a Muslim client. He was born in the United States in Lincoln at St. Elizabeth’s. His father was studying agriculture at UNL. He is 24. His name is Anwar el Alwaki.

    He is currently married to a woman. She is 21. They have two children.

    Two of his female first cousins have traveled to the United States from Yemen. They are 16 and 18. They have overstayed their visas. They are illegal aliens. Both woman have given birth to children via my client. Again at St. E’s. All 8 people live in a house two blocks from the Nebraska State Capitol. None of the adults work. Only my client speaks English. The two teenagers attend high school. The oldest will be a senior next year. Go Links!

    They have strongly held religious beliefs and want to get married. They want to exercise their First Amendment rights. They all love each other. The parents of the two teens, however, have not given their consent to these proposed marriages. One set of parents have written and have forbidden this marriage. The other set of parents can’t be located in the war chaos of Yemen.

    I plan to file a lawsuit next week in the United States District Court for the District of Nebraska.

    Suppose further through the magic of a law school hypo and the blessings of Allah that the long deceased Judge Thomas Charles Munger is raised from the dead. He also instantly knows all of the Supreme Court’s jurisprudence on this issue.

    How does Judge Munger rule?
    And understand he is bound the case decided just yesterday.
    Nebraska state law (to the extent it is relevant) prohibits plural marriage, marrying your first cousin and has an age requirement. A person is not an adult in Nebraska until age 19. It is 18 in Iowa.


    To what extent is state law applicable after Mr. Justice Kennedy’s love is love opinion?
    What rational reason is there to prohibit plural marriages in light of federal constitutional rights? Why the abritrary age requirement?
    What science or compelling state interest prevents cousins from marrying each other? I have settled science expert testimony that this inter-family prohibition is just a myth.

  3. Dear Anon.,

    Fascinating! That said, when I got out of law school (only Allah knows how) I vowed never to answer hypothetical questions again. Sorry. However, others of the millions who read this piece of shit blog may wish to chime in. That’s up to them.

    All the best.


  4. I won’t attempt to answer this question until after dinner tonight. It will have to be Chinese takeout so I can consult a few fortune cookies. Luckily our favorite takeout loads up on the fortune cookies, because I’m going to need a lot of them to essay an answer to that hypothetical.

    I just don’t want to have to walk around with a bag over my head. While it might be an improvement to my overall look, it would quickly steam up my glasses. It can get uncomfortably hot walking around with a bag over one’s head.

  5. Anon, Firstly the facts of life, not science explain why there is no problem with Lesbian first cousin marriages, secondly you should have made them a male, female couple who are Orthodox Jews, so that the religion issue is real, thirdly the age issue is already settled in case law. Was that the Munger who so upset TR by his virtual non enforcement of the Taylor Grazing Act, or was it the other Munger?

  6. Okay, I’ll play. This answer is conditioned on a more thorough analysis of applicable state law. Your actual mileage may vary.

    As for plural marriage itself, see Hobby Lobby. The Muslim family can invoke the “religious veto,” subject to other considerations. Thank you, Nino. If not for Scalia’s refusal to follow his own decision in Employment Department v. Smith, plural marriages could still be prohibited, as the State has a sufficiently compelling interest there. Now? I’m not so sure.

    That is the threshold question. Let’s get to the “other considerations.”

    First, the State has a compelling state interest in prohibiting incestuous marriages, on the grounds that they tend to result in mentally feeble offspring, which often end up as wards of the State. That is the traditional deal-killer, and it still is. Conversely, if the cousins were male, I’m not sure the “religious veto” would work.

    If they are members of the Church of the Flying Spaghetti Monster, YMMV.

    Second, if we change the facts to avoid the first problem, the State can still require that participants in a marriage be of the age of consent. Marriage is a contract, and one of the requisites of a contract is contractual capacity. Good for the 18-year-old, but probably not for the 16-year-old. We don’t have enough facts (which set of parents can’t be contacted?), but if Nebraska requires that the parents consent and they don’t, they can’t marry. At least, not yet.

    Third, as for the children, I’m not sure that the Fourteenth created jus soli citizenship, but the judge would have to follow Wong Kim Ark regarding their status. President Cruz’s DoJ may challenge it, and they could even lose at the SCOTUS level. Their mothers, not so much. Yes, they could be deported, and they can still be denied visas, even if they want to get married. The United States government still enjoys plenary control over who it will or will not let into the country, even though it is not exercising that authority vigorously at this time. The other women can marry Wacky, but that doesn’t give them a right to be here.

    Fourth, whether the parties work is legally irrelevant, and I would imagine that it is difficult to make it through high school without speaking English.

  7. Judge, I join in your praise of Joe both as a human being and as a lawyer, he is a true good guy.On a jury panel and being questioned about accepting the law from Judge Joe, I responded that I was not there to grade the court’s law to which the Judge added “It is about time.”

  8. Just another reminder of how fucked up our judicial system is. It took a hundred cases and an army of high-priced lawyers to answer a relatively simple question of law, when all it really took was a mere Bataillon. 😉

  9. Your reference to Hobby Lobby is mistaken in that Hobby Lobby was about the application of RFRA, not the first amendment, and City of Boerne v. Flores says RFRA doesn’t apply to the states.

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