Sunday, February 06, 2005

Kris Kobach endorses judicial activism : Gay marriage ban sparks slew of legal questions:

Will gays be barred from visiting their partners in a hospital emergency room? What would happen if a lesbian couple is raising the child of one of the partners from a previous marriage, and the biological mother becomes terminally ill and wants the child raised by her longtime partner?

And would the amendment affect other relationships outside of marriage?

Constitutional lawyers disagree about the answers to those questions -- and that could lead to drawn-out litigation if voters approve the amendment.

“It invites government by the judiciary,” Bill Rich, a law professor at Washburn University, told lawmakers during a hearing on the measure. He said the amendment was a violation of the U.S. Constitution.

But amendment supporter Kris Kobach, who teaches constitutional law at the University of Missouri-Kansas City, said many of the arguments against the measure were “red herrings.”

“The Kansas amendment would not put homosexuals in a different position than they already are,” said Kobach, a conservative Republican who recently ran an unsuccessful campaign against U.S. Rep. Dennis Moore, D-Kan.

Kobach said the proposed amendment would pass constitutional muster, because recent U.S. Supreme Court decisions on equal protection cases have assured states that the court does not want to jeopardize the traditional marriage relationship.

First he supports an amendment that pretty much everyone thinks is so vague that its every aspect will be sorted out in the courts. Then he says it's constitutional because of recent judicial interpretation.

I sort of figured him for a strict constructionist. Don't judge a book by its cover, I guess.

More on Kobach.