Author: Othniel

Just stopped off for Ruffin to heat up some Gumbo on the way to move into his apartment. Ruffin is excited to be leaving the Austin Convention Center, and to have a place of his own in Austin for now. We located a couple of place settings of dishes and some silverware. Some salt and some Ivory Liquid. And a spare mixing bowl. Ruffin is taking his cot and bedding from the Convention Center for now. Austex54 is bringing him a mattress tonight.

Ruffin says, “Hello, and God Bless all of you. Please join me in New Orleans for Mardi Gras. I appreciate everything you have done for me in Austin. It feels Good to have my own place for now, and I think I can work the bus lines, and find a job or two.”
“I spent several days under the Causeway Bridge for I-10, with only the clothes on my back.  It was muddy and stank like nothing I have every smelled before. It was way too crowded, but I did get to see Jesse Jackson who came to help our people. I got there by taking a boat down Delachaise Street to St. Charles, and walked from St. Charles to Napoleon to a bus to go to Houston, but was instead dropped at the causeway bridge.  The water was all in my house when I began making my way to safety.”

“I had nothing to eat for days, and could not eat the food here in the Convention Center, so I guess I had not eaten for six days when Mister Robert found me exhausted in the Convention Center and took me out to eat for some Crab meat bisque to get my strength back up.  Now we have become friends, and I have my own place to sleep again tonight.”

“I appreciate the people of Austin for their help and prayers.  This is one experience I won’t forget.  Ever.”

Veronica is moving into her place tonight, along with many of the senior citizens from New Orleans. We are getting her a plant for her balcony tomorrow.

Janet Strange is taking Liz to the Humane Shelter to pick up her dogs, while Troy and Ari move their things into their new apartment near Oltorf and I-35. Troy and I took a short trip to San Antonio last evening, and he plans to drive to Houston tomorrow to visit his two year old son for the first time since the strom – though it will be a while before he can get to Atlanta to visit his 11 year old son, Troy Junior.  In New Orleans Troy lived in the same neighborhood with both sons, so he misses them a great deal, and they miss each other.

Karyn, Orlando, Edwima, Lawrence, Michelle and most of their family are locating near Northcross Mall, although Roderick, his three siblings and his mother Coretta will be a few blocks away.

Karry left today for Kentucky to join his brother. I told him goodbye for all of us, thanks for the Gumbo he cooked, and that we are proud to have known him. He promised to call me with his new contact information.

Relaxing a moment while Ruffin heats his Gumbo and makes some rice. And smoking my brand new pipe Ruffin got for me from Wal-Mart last evening as a surprise thank you. I have never had one which meant as much to me. I will treasure this gift of friendship for years.

Welcome to the Austin Kos Live Blog of the New Orleans Survivors Gunbo and Jambalaya Friday Evening Gathering from Othniel’s Digs.

About Twenty Folk who recently relocated to the Austin Convention Center from New Orleans are gathered with the Austin Kos group for Gumbo and Jambalaya prepared by Karry, a chef at Pascal Manales restaurant in New Orleans. He started cooking yesterday so that we could enjoy this feast tonight, complete with pound cake for dessert.

We’re going to take turns saying a few words…

When invited to comment, Karry said, “Nawwwww.”

I’m Jan.  I just ate some great cooking!  You shoulda been here!

Roderick (9 years old) says:
how are y’all doing?

My name is Lawrence. I’m 18 years old, and I had fun at the Gumbo Bash.

well I’m Karyn and it has been a pleasure to be invited to such a shin dig!If the people here at this small gathering of friends represent the great state of Texas then it’s as awesome as I imagined it would be.

Orlando, who is 17 years old, says “I want to play in the NFL!”

My name is Angie I am grateful for the gumbo and jambalaya and the kindness of all the People in Austin Texas I really miss home but I am grateful that I am here with my family

Edwima says just be thankful and grateful.

Veronica (78) says, “I want to thank all of you people for being so nice, and it’s so truly appreciated. I haven’t laughed or smiled in a couple of weeks as I have here tonight. I had a wish for gumbo and it came true! It was delicious! And so was the jambalaya.”

Troy says, “Like the tree in front of my house in New Orleans, I bent but I didn’t break. And I’m being propped up by the people of Austin. And I will bear fruit again.”

Ari says, “The city of Austin is so nice out here. I give my blessing to them for helping our people out when we didn’t have anything. And I thank them from the bottom of my heart. And I love them. And I’ll always keep them in my prayers.”

When the Saints Go Marching In has followed Louis Armstrong’s rendition of Down By The Riverside on the Sound system – “Ain’t Gonna Study War No More.”
This is Refinish69(Steve). Tonight was one of the best nights I have spent in years. I brought in my collection of teddy bears and collector Barbie dolls and watched the women of all ages smile from ear to ear as they selected babies to take with them and keep as keep sakes. The food was fabulous and the friends I made tonight will be friends for years. It is a fabulous feeling to see the survivors expressing their feelings, laughing, talking and even expressing anger at the situation. I feel blessed to have met these wonderful people. Tonight I feel the healing may have begun for some of my new friends.

This is roses. Oh, what a night! Truly the best gumbo and jambalaya I’ve ever had. Hard to describe all the emotions I feel. I’m just glad that these wonderful people that I’ve met from New Orleans are here with us and safe.

Ruffin of New Orleans says Good Night, Sleep Tight.

I have just completed my second day as a volunteer chaplain at the Austin Convention Center. I have met the most incredible people with indomitable spirits.

I can add to the items which are needed the following:

1. Reading Material, especially large print and other senior adult reading material. Even old magazines are appreciated, especially national geographic, music industry publications, Austin or Texas Magazines, and general fiction. The adults need diversion, and all that is available are large screen TV’s which are tuned to news channels. Religious services and child care provide some diversion, and many are beginning to get their bearings and walk around downtown, but reading material is a plus.

2. Underwear.
3. Children’s books and simple toys. There are far more children than I expected. Four huge rooms in the convention center are filled with people. There are also an extraordinary number of single men, who fill one large room. Many of these men remained behind while getting their families to safety and are anxious to hear from families.
4. Large Size Women’s clothing. Many people have donated clothing but women who need larger sizes have been underserved. I am thinking of one woman in particular who still remains in the clothes on which she camped on the remnants of I-10. I am taking her some men’s tshirt’s in the morning, but she is only one of several.
5. Fun. We need some outdoor downtown concerts or some such thing soon.
6. Jobs are a critical issue for many people. Most of the men and women whom I have met are proud to be workers, and anxious over accepting government unemployment benefits. There will be a critical need for creative employment counseling soon.

Most of the people who are in Austin were in the Convention Center in New Orleans. Many others were sleeping on the concrete on I 10. Most came here by commercial airliner, some by military aircraft.

The Austin Police and Firefighters have been awesome.

Saw Mark Strama with Will Wynn and Lee Leffingwell as I was leaving. Mark immediately set about arranging a concert.

Here are a few stories:

A most amazing day. The situation in Austin is nothing like it is in Houston, I am sure, but the need for the people with whom I interacted simply to have their basic human dignity returned to them is intense. Everyone is missing someone close to him or her and has no idea how to find the person or if he or she can indeed be found. The loss is staggering, but the spark of human spirit is impressive. I am overwhelmed by a 19 year old pastry chef who waded through water to insure his wheelchair bound grandmother could have transport and that she could live. 7 family members are here, but his own mother, father, brother and sister are missing. His smile is still strong and his spirit unbroken as he talks of finding work, shuffling through his backpack to show me the two books he managed to save from the flood. We talked of my time as a cook during college and law school and what it means to grill a steak Pittsburgh rare for a picky customer on a busy Saturday night. He had saved the tools of his trade, but had to surrender them when transport was arranged by commercial airliner and he could not board with his grandmother and maintain his culinary knives. His grandmother spoke of her church, her pastor, and how she served food to so many in the Church. I affirmed her years of ministry and told her it was time to rest and let others return to her the ministry she had provided to so many for years. The family had survived five days living on the remnants of I-10.

Another woman who managed to hold thirteen family members together in the New Orleans Convention Center, and somehow get them all together to Austin, watching her nine year old grandson play and return to childhood.

A man who operated machinery to fill soft drink bottles, waiting on his first shower in six days and watching his wife sleep and rest at last on the adjacent cot. Wondering when he will work again, when he will again be a provider, but holding his head high.

So many kind words for the people of Austin, who lined the streets and waved as buses brought these folk from the airport.

This just in from Austin!

As many of you aware, thanks to janet strange, the Austin Kossacks are working hard to make sure the blogging community is an effective and important part of DemFest this weekend in Austin.

The Republicans have launched an insidiuos attack designed to stop us in our tracks, but we have foiled Tom DeLay!

Thanks to the intrepid reporting of John Kelso of the Austin American-Statesman we were alerted Tuesday morning to the presence of a ten foot python spotted swimming in Shoal Creek a few yards from the Othniel apartment.  Immediatley I made the connection between this snake and Tom DeLay.

Kelso reports:

Bill Moore says it was a week ago today when he saw the python swimming down Shoal Creek.

“It stuck its head out of the water, and then it went out on the bank,” said Moore, a nurse at the Travis County Jail. He was standing on the bridge over Shoal Creek on 10th Street near Lamar Boulevard about 4 o’clock in the afternoon. “That’s when I saw the size of its body. It looked like it was about 10 feet long.”

After noting the City of Austin, claiming Shoal Creek is a natural habitat for the Python, refused to take action regarding the Python when Moore alerted the City to its presence, Kelso, who is really on top of developments such as this in Austin, quoted a Biologist whom he had interviewed in preparing his report:

Shoal Creek is not natural habitat for pythons, said Andy Price, a biologist for the Texas Parks & Wildlife Department.

“It might be natural habitat — if it was in the Philippines,” Price said. He figures the snake is probably an escaped pet “or deliberately released, one or the other.”

It was Kelso’s report that the python might deliberately have been released which really got my radar going.  Knowing Tom DeLay’s connection with Snakes, and being aware of his past career as an exterminator, thanks to Kelso’s warning I was fully prepared for the threat, anticipating an attack from DeLay’s Python during one of my frequent treks across the 10th Street Bridge over Shoal Creek to the local 7/11 where I restock my Milk Duds supply.

However, DeLay and the Python had even more invidious designs.  This morning I awoke to find my downstairs flooded after the toilet apparently had been broken when the Python slithered through the sewer system to launch DeLay’s assault on this Austin Kossacks’ computer by damaging my electical system.  The preparations for the Bloggers’ Caucus are at a peak, and knocking out even a single Austin Kossack’s computer would have proven devastating to us.

DeLay and his snake underestimated this Austin Kossack however. I may have had my law office destroyed by the Tornado which struck downtown Fort Worth a few years ago, and lost a computer in the fire which gutted my first Apartment after fleeing the Forth Worth tragedy for Austin, but floods I can handle.  It has been my lot in life to experience epiphany in solidarity with the Prophet Jonah at the base of the mountains under sea rather than with Moses on the mountain tops, and I knew the experience would one day prove useful.

While my son Zane made a valiant attempt to stem the damage when he returned last night from patrolling Sixth Street in search of unregistered voters (at least that is what Zane told me as his Dad he was doing), it was the newest Austin Kossack, Austex54, who arrived at 6 a.m. when summoned with a wet vac and stayed the damage before the computer and the electrical system could be affected who actually beat back DeLay’s snake.  Politcal activism and Kossack solidarity can express itself in often unexpected ways, and together Austex54 and I thwarted DeLay’s attack.

DeLay’s interest was probably piqued by the fact the Austin Kossacks are featuring an attempt to unseat DeLay’s clone and crony, Lamar Smith (R-Texas, 21) at the Caucus, as well as focusing on taking back the Texas House which DeLay’s unprecedented efforts recently reduced to Republican control, by having Mark Strama (D-Austin, HD 50) address the Bloggers’ Caucus.  John Courage, whose very name inspired my defense against the Python, who is seeking to unseat Smith as Sixth Street’s Representative in Congress, and Andy Brown, who has announced for HD 48, a close district currently held by Todd Baxter (R-Austin) are personally attending the Caucus Friday Afternoon.  David Van Os, Democratic Candidate for Texas Attorney General has also committed to be personally present.  Bloggers from across Texas and the nation are going to have an opportunity to interact with representatives  of the campaigns of Barbara Ann Radnofsky (US Senate), Chris Bell (Governor), LGRL (The pending Marriage Amendment), and Judge Charlie Baird (Travis 299th Judicial District Court) as well, so you can see how it important it was to DeLay to send his Python on this mission.

The Austin Kossacks will continue to monitor Kelso’s column in order to thwart the Vast Right Wing Conspiracy.  Already he has alerted us not only to the Python, but also to the invidious attempt by the Legislature to regulate Sexy Cheerleading, and the Young Republican’s effort by arranging maid service for wealthy college kids to stifle activism among Democratic Youth by correlatively increasing the clutter in the Young Dems’ Dorm Rooms at UT and Texas A & M, and thereby impede the Democrats’ access to their computers.  We are on top of the latter situation and will work with the University Democrats from UT to beat back additional threats from the Young Republicans.

But for now, DeLay’s Python has returned to Shoal Creek, and the threat has been averted.  I’ll continue to watch for it on my Milk Duds forays though.

During the debate over Texas’ anti-Gay Marriage Amendment on the floor of the Texas State Senate late last month, Senator Leticia Van de Putte (D-San Antonio) proposed a radical amendment to the resolution Republicans were sponsoring in order to get their proposed Constitutional Amendment protecting Traditional Marriage before Texas voters.  Senator Van de Putte’s radical proposal was, that if the State Senate truly was concerned about protecting the institution of marriage, the proposed Constitutional Amendment should be amended to require that all couples in a heterosexual marriage be required to have at least “Some Sex” in order to strengthen the institution of Marriage.  Now this is truly a radical proposal.  Unfortunately it was met with dismay if not astonishment by the Republican majority, and the brave Senator was required to beat a hasty retreat back to her Alamo.

More below the fold.
The relevance of Senator Van de Putte’s proposal is highlighted by the United States Supreme Court’s opinion earlier this week in Gonzales v. Raich, the Medical Marijuana case, which affirmed Congress’ broad power under the Commerce Clause to regulate activity which might appear to the lay person only to involve intrastate rather than interstate commerce, such as the growing of marijuana from domestic seeds for personal medical use on one’s own property.  Congress now manifestly has the power under the Commerce Clause to require “Some Sex” in marriages in order correlatively to diminish commercial sex such as prostitution.

Among other things, Raich made clear that such moral stalwarts as Congressman Tom DeLay (R-Tex) and Senator John Cornyn (R-Tex) have the power to use the mandate given Congress under the Commerce Clause of the United States Constitution to use the clause’s broad powers in their effort to, on Mr. DeLay’s part, enforce Congress’ own version of morality upon otherwise private decision making, or on Senator Cornyn’s part, protect America’s Box Turtles from assault by Gay Men through regulating on a federal level the Institution of Marriage by restricting unions to those between one man and one woman.  What better way to protect and to enhance the Institution of Marriage than by requiring couples to have “Some Sex” in their marriages.  Imagine the impact on commercial sex if sex between married persons become more widespread with Congress’ encouragement.  Even the Gay Male Escort trade might be impacted, if, as DeLay and Cornyn’s High Priest James Dobson would surely argue, fewer men chose sex outside of marriage with other men if more natural and fulfilling sex were available inside their marriages.

With Senator Van de Putte’s failure to persuade the Texas Senate to act on this important matter, clearly it is time for Congressman DeLay and Senator Cornyn to seize the initiative and force Congress to act.  Strong, moral Leadership is required, and they are just the men to provide it.

Of course, since Massachusetts has yet to be expelled from the Union, any Federal legislation would have equally to promote sex between gay and lesbian couples married legally in Massachusetts, (otherwise any such Federal legislation would surely fail on Equal Protection grounds under the Fourteenth Amendment) but this should be a small price to pay to protect the Institution of Marriage.

An interesting article in Salon today notes that Federal adoption of Senator Van de Putte’s “Some Sex” approach to Protecting Traditional Marriage was anticipated by Raich’s Counsel at oral argument before the Supreme Court on the Medical Marijuana case:

Last November, during oral arguments in Raich, Barnett, the plaintiffs’ lead counsel, momentarily silenced the stodgy courtroom. Think about prostitution and marital sex, Barnett said, not having to ask twice. In that case, he went on, the same act is regulated under some circumstances but not under others, even though the two influence each other. The less marital sex someone has, Barnett argued, the more times someone will seek out a prostitute. So by regulating that married couples have more sex, the state could reasonably expect to reduce the occurrence of prostitution. But surely the federal government can’t regulate the number of times a couple must have sex in a week, Barnett concluded.

Monday, I asked him if Congress could now regulate marital sex. “Yes,” he said, “under the reasoning of the majority opinion.”

Surely Congressman DeLay and Senator Cornyn will act immediately to fill this important void in Federal Regulation, and do everything in their now secure Commerce Clause Power to protect the Institution of Marriage.

roses suggested I pass along to everyone here a Letter to the Editor I had published in this morning’s Austin American-Statesman concerning the recent filibuster compromise:

Cornyn loses relevance

One of the biggest losers in the Senate compromise on the filibuster appears to be Sen. John Cornyn, who was essentially reduced to wailing on the Senate floor about the agreement. By adhering to the strict line demanded by Majority Leader Bill Frist and James Dobson, Cornyn sadly missed the boat when the new senate power-brokers, led by Sens. John McCain and Lindsey Graham, resolved what could have been a devastating crisis. Let’s hope our junior senator can find some Texas independence and avoid becoming increasingly irrelevant in the senate.

More below the fold.
I want to continue to encourage everyone to get involved in the public debate about issues which are of import to us.  And I do agree with roses that we should report back on our experience.

Texans may want to take this opportunity to write to Senator Cornyn and remind him how much we value Independence.  James Dobson already has two Senators from Colorado representing him, and, even though he is currently feuding with Freshman Democrat Ken Salazar, he does not need to replace him with one of ours.

Senator Cornyn is particularly committed to carrying water for Dobson on the Federal Gay Marriage Amendment, of which he is shamefully a sponsor, and about which he began railing on the Senate floor as soon as the Federal District Court in Lincoln issued its opinion declaring the Nebraska Gay Marriage Amendment unconstitutional.  You can view an earlier diary I posted on this ruling here.  As I state in my analysis in the diary, the ruling is hardly that of an “activist” judge.

Get Radical and Keep the Debate Alive!  

An assault on the Right to Vote by requiring Voter identification was narrowly averted on the floor of the Texas Senate about 1:30 this morning when Democrats used a parliamentary maneuver and a threatened filibuster (Remember these?) to derail a House Amendment to SB 89 which would have required voters under 85 to present two forms of identification at the polls in order to cast non-provisional ballots.  Representative Mary Denny (R-Flower Mound) began her assault on the Right to Vote early in the current session, but her effort earlier was blocked when Democratic Senators united to prevent her bill from being heard in the State Senate.  Sadly, she was able to attach her bill as an amendment onto other legislation late in the Session, despite the strenuous objections of Democrats like Mark Strama (D-Austin).
The Austin American-Statesman has a report on its “Postcards from the Lege” blog:

SB 89 Filibuster Averted

Texans can follow the issue at

Off the Kuff

Bills like that proposed by Mary Denny have been proposed throughout the Country, and a similar one has already been enacted in Georgia.  These Bills unfairly impact minority and elder voters who are less likely to have the required identification.

Due to the differences in the Senate and House versions of SB 89, the issue remains alive in Texas until we rid ourselves of the Legislature when the Session ends Monday.

Here is the letter I sent to Senators Barrientos and Ellis this morning regarding the effect of the 26th Amendment on the right of elder citizens to vote:

Dear Senators Ellis and Barrientos:

    Thank you for standing up to Mary Denny’s unconstitutional assault on the right of Texas citizens to vote.  I am addressing this to Senator Ellis due to an alert I received from the Travis County Democratic Party and to Senator Barrientos because you are my Senator.  While SB 89 unconstitutionally impacts the right to vote of many Texans, I am particularly concerned with its impact on the rights of elder voters in our state, and it may be that in this respect the bill is most clearly unconstitutional. Proceeding further on it at this time would be fiscally irresponsible and constitutionally reckless.

US Constitution, Amendment XXVI, Section 1:

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. (Emphasis added)

    Mary Denny’s assault on the elder vote violates the 26th Amendment in two ways. First, it has a disproportionate effect on elder voters.  Second, it classifies voters by age, applying only to those under 85.  Elder voters are by definition “eighteen years of age or older.”  Those elder voters who have not yet attained the age of 85 are clearly protected against discrimination regarding their right to vote by the 26th Amendment.

    We need to claim this Amendment on behalf of elder voters  As a young man,  I was a proud member of the age group who won the right to vote when faced with the draft, and proudly cast my first vote as a direct consequence of the adoption of the 26th Amendment for George McGovern. It would be entirely fitting that the work of the young people of the 70’s should, through the last clause of the 26th Amendment, “on account of age,” have lasting import for our senior voters.

    Please claim this right on the floor of the Texas Senate on behalf of the elder voters of our State.

    Further, ordinary principles of both fiscal and constitutional stewardship and prudence argue that time ought to spent studying the effect the 26th Amendment on Mary Denny’s legislation, rather than rushing the State headlong into a legal battle and potentially wasting taxpayer money in a fruitless attempt by the Attorney General to defend the legislation against an expected constitutional challenge.  There simply is no crisis impelling this rush, and plenty of principled, conservative arguments against it.

    Thank you both for your service in the Texas Senate and for your attention to my concerns regarding SB 89 and the 26th Amendment to the Constitution of the United States.  Please feel free to contact me should you have any questions which you feel I could help you to resolve.

The Constitution belongs to all of us.  Claim the 26th Amendment on behalf of our elder voters, who cannot be forced to lose their Right to Vote “on account of age.”  My vote as a 19 year old for George McGovern is still not wasted!

Many of you know by now that I am an Austin, Texas, lawyer focusing on constitutional law, and that I live in Austin with my 17 year old son who is a college freshman here.  Tomorrow (May 19, 2005), the Texas Senate Committee on State Affairs will be hearing public testimony on the proposed Amendment to the Texas Constitution banning same-sex marriage and other arrangements “similar to” marriage, possibly including common law or informal marriage which is recognized in Texas.

My son has prepared written testimony for submission to the Committee, and is working with several of his college friends who are also doing so.  I wanted to share his testimony with you, as a proud Dad.
Testimony Prepared for the State Affairs Committee of the Texas Senate, Hearing on HJR 6, May 19, 2005

Prepared and Respectfully Submitted by:
Zane [full name redacted]
[address redacted]
Austin, Texas 78701
[e-mail redacted]  

I am a student at Austin Community College originally from Fort Worth.  This summer I will be taking a class on Texas Government, so I am here doing my homework in advance.  I will turn 18 in July, and I will register to vote on or before my birthday.  Please do not make me cast my first vote in an election on this misguided Amendment which would write discrimination into our Constitution.

Like most Texans my age, I am Straight but not Narrow.

This proposed Amendment is all about religion.  I grew up going to Broadway Baptist Church in Fort Worth.  My parents and my Church taught me to read the Bible for myself.  I do not need Warren Chissum and Robert Talton to teach me Sunday School in the Texas Constitution by writing into it their own narrow religious views about homosexuality or what constitutes a good and appropriate marriage, whether formal or informal.

HJR 6 would render many Texans second class citizens.  Who will be the next class of Texas citizens told to stay at the back of the bus?

This proposed Amendment rises out of bigotry, hatred, irrational fear, or, at the most charitable, misunderstanding, about gay and lesbian Texans.  Frankly, there is enough fear and misunderstanding, and too much bigotry and hatred, in our society, without the legislature encouraging such emotions by putting an Amendment such as this to a vote of our people.

Like many Texas students in our colleges and universities, I hope to find a good job in Texas when I graduate.  What kind of message does it send to national and international business considering locating in Texas when you are writing discrimination against some people who will be or are their employees into our Constitution?  What Dutch, Belgian, Spanish or Canadian company would want to locate in our State?  Please, Senators, do not take any steps to discourage the growth of jobs in Texas.  I plan on one being available for me.

I am greatly concerned about the threat Senator Ellis received when he placed a hold on an earlier hearing.  An election on this amendment is likely to stir a great deal of passion, and violence and threats of violence will most likely occur.  Senators, I live in the neighborhood of the Capitol and the Travis County Courthouse.  I go to the ACC Rio Grande campus right down the street.  I frequently walk by the Capitol on my way to Stubbs or other music venues.  Acts of violence which occur during an election on this proposed Amendment or a following court case are more likely to occur in my neighborhood than perhaps in any other neighborhood in Texas.   Please work to keep me and other students at ACC safe, and do not encourage violence by passing HJR 6.

Finally, like many Texans my age, my principal source of news is the Daily Show.  I have been able to follow the Texas House pretty effectively this session by watching Jon Stewart.  I hope I do not see The Texas Senate on his show.

I want to thank each of your for your work in public service, for your consideration of my testimony and for giving me a headstart in my Texas Government class.

Yesterday Judge Joseph F. Bataillon of the United States District Court for the District of Nebraska, sitting in Lincoln, issued his opinion in Citizens for Equal Protection v. Bruning declaring the Nebraska Constitutional Amendment banning same-sex unions unconstitutional.  
You can read the opinion here:

Opinion of the Court

This is a truly significant ruling.

First, despite all the blather from the right, this is not an “activist judge” opinion.  It is almost wholly based on Romer v. Evans, and the Judge simply followed the law.  The Lawrence v. Texas opinion is only cited once in the case.
The Amendment, now Article I, Section 29, of the Nebraska Constitution, was added to the Nebraska Constitution after a ballot iniative in November of 2000.  It provides “[o]nly marriage between a man and a woman shall be validor recognized in Nebraska.  The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.”

Section 29 failed four separate constitutional tests, any one of which grounds would be sufficient for affirmance of the district court’s opinion in the 8th Circuit.  On first blush the Nebraska constitutional amendment appears unique, but there is a very striking parallel with amendments passed by or being considered in other states, notably Kansas and in Texas, where an amendment proposed by HJR 6 has passed the House and is awaiting approval in the State Senate.

First Amendment Freedom of Political Organization.  Section 29 prohibited or impaired Nebraska citizens from lobbying for laws which would protect them from discrimination or enhance their status by writing discrimination into the fabric of Nebraska’s Constitution.  Simply put, Nebraska citizens who wanted to lobby political authorities for fair treatment of gays and lesbians were given too many hurdles to surmount in organizing to accomplish their goals, because they faced an environment in which the political ends they sought to attain were prohibited by a state constitutional mandate.  The Court’s findings were augmented by the overbreadth of Section 29.  

Fourteenth Amendment Freedom of Intimate Association.
The Court stated the Constitution “afford[s] the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the state.’ (Opinion at 14).  He also noted “the legal status of, or state sanction upon, [such] a relationship is not controlling. (Opinion at 15), and cited Lawrence as holding that “the fact the governing majority in a state has traditionally viewed a particular practice as immoral is not sufficient reason for upholding a law prohibiting private consensual sexual behavior.” (Opinion at 16).  

First Amendment Right to Petition Government for Redress.
The Court stated the right to petition, or to participate equally in the political process “can be impinged by a state constitutional amendment that ‘alters the political process so that a targeted class is prohibited from obtaining legislative, executive, and judicial protection or redress from discrimination absent the consent of a majority of the electorate through the adoption of a constitutional amendment'” (Opinion at 18, citing Evans v. Romer (Evans I), 23).  The amendment “creates a barrier to participation in the political process that no minority population is ever likely to surmount.”  (Opinion at 23).  The Court noted the “State reads the amendment as rendering unconstitutional any proposed legislation that would elevate a same-sex relationship or agreement to the same plane as married persons.” (Opinion at 21).  This is very relevant to the proposed Texas amendment which would preclude recognition of any relationship “similar to marriage” and similar amendments such as the one in Kansas. The ruling stands for the proposition that a state cannot prohibit relationships “on the same plane” as marriage in order to preserve or bolster the institution of marriage.

Fourteenth Amendment Equal Protection.
This is the gravamen of the Court’s ruling and it is based squarely on Romer.   Notably the Court did not address the amendment’s definition of marriage as between a man and a woman.  The parties sought only to level the playing field to lobby effectively for their rights.  That part of the amendment fell because the challenged portion and it were not severable.  Of particular concern to the Court concern was the overbreadth of Section 29, which raised “the ‘inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.'” (Opinion at 29, citing Romer at 634-35).  
    The Court also noted Section 29 was too narrow to accomplish its stated purpose of protecting marriage because it “does not address other potential threats to the institution of marriage, such as divorce.” (Opinion at 30-1).  Section 29 was both too narrow and too broad – the message to the right is that if you want to discriminate you have to get it exactly right.
    The Court also found the amendment “was designed against the class it affects, making it status-based.” (Opinion at 31).  It “goes so far beyond defining marriage that the court can only conclude that the intent and purpose of the amendment is based on animus against this class.” (Opinion at 31).  

Bill of Attainder, U.S. Const. art. i, sect. 9, cl. 3.
The critical issue in the Court’s analysis of this matter was whether the amendment was punitive. He found Section 29 was punitive because it singled out a particular group and effectively disenfranchised the members of that group.  (Opinion at 39-40).  The intent of the amendment was found to be “to silence the plaintiff’s views and dilute their political strength.” (Opinion at 40).  The “adoption” of the amendment “was motivated, to some extent, by either irrational fear of or an animus toward gays and lesbians.” (Opinion at 41).

Of course the right has responded by immediately calling for the enactment of a federal constitutional amendment banning same-sex marriage.  Texas Senator John Cornyn brayed about this immediately.

Be ready for a fight.  

[From the diaries by susanhbu.] Harper’s May Issue (not available on-line) has an excellent story by Chris Hedges called “Feeling the Hate with the National Religious Broadcasters.” In it Hedges quotes Frank Wright, President of the NRB, as telling a convention in Anaheim recently about “a late-night private tour of the Capitol in which he and a group of other pastors stopped and prayed over Hillary Clinton’s Senate floor desk,” and notes the crowd roared its approval.

How dare they! I am so offended for Senator Clinton, whom I believe to be a good woman and a good Senator, and whom I accept as a fellow believer, that my heart aches.

This indignity has got to stop. No one deserves the abusive invasion of having her desk “prayed over” by those who vilify her. …
Who let them in – probably it was Senator Frist who sponsors such tours for a group led by David Barton, a minister who is also vice-president of the Texas Republican Party.  See Rev. C. Welton Gaddy’s letter as head of the InterFaith Alliance, to Senator Frist, asking him to stop the tours here:

www.interfaithalliance.org

According to Barton’s website another Tour of the Capitol to be hosted by a member of Congress is scheduled for June 12-13.

www.wallbuilders.com

This abuse has got to stop.  As a lawyer I cannot imagine the indignity of having my desk “prayed over” by people who hate me.  As a Christian I cannot imagine doing so to someone and then bragging about it in public.  As an American, I am indignant that a place as crucial to our Republic as the very floor of the United States Senate has been desecrated in such a fashion.