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:
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.
