Bench Memos

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On the Nebraska Decision


Even a stopped clock twice a day tells the correct time. Thursday’s Nebraska decision is so poorly reasoned that one wonders if it is all tongue-in-cheek. Forty-three turgid, confused pages in support of two legal conclusions, one more improbable than the other. The result nonetheless follows from Lawrence v. Texas, and owes more than a little to faulty draftsmanship in a good cause.

The court concluded that Nebraska’s DOMA was actually a Bill of Attainder. Yes, that Bill of Attainder, the one which you naively thought referred to legislative judgments of guilt without benefit of judicial proceedings. Now we are invited to concur that it covers a constitutional provision which denies unmarried couples the benefits of marriage. The court’s reasoning in support here is disastrous, almost obviously insincere. Mercifully, it’s just a few pages at the end.

The court’s reasoning in support of the Romer conclusion is much more involved. Unfortunately, it never quite achieves relevance. It is entirely question-begging. It depends upon some normative–that is, federal constitutional–distinction between legislative and constitutional politics which the court never supplies. This conclusion depends, in other words, entirely upon a missing account of which norms may be enacted by legislators but never by those (e.g., the people) who make constitutions. For myself, I cannot imagine what such an account would look like. Neither, Thursday’s decision suggests, can Judge Bataillon.

To the extent there is any force to this part of the opinion, it is supplied by the assertion that there is no rational basis at all to this political outcome, that it rests upon mere animus towards a particular group. The targeted group is, evidently, comprised of homosexuals. But the force is particularly weak here because the Nebraska plaintiffs are not same-sex couples at all. The plaintiffs are political outfits such as ACLU Nebraska. Besides, the Nebraska law does not actually use the words “homosexual,” “lesbian,” or “sexual orientation.”

Unfortunately, the law was poorly written and, assuming (as the court has to assume) that Lawrence is good law, Judge Bataillon nonetheless landed in the right spot.

Here is what the relevant part of the challenged law says:

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.
There is an ambiguity here, one which the Nebraska court sophistically exploited in supports of its misplaced legal conclusions. The court did not see that the quick route to its desired conclusion runs right through the ambiguity. And the route is a very short one.

Reading one: The law does not refer exclusively to same-sex relationships involving sexual conduct between the two parties. The law on this reading includes homosexual and lesbian couples but is not limited to them. The law includes other “same-sex couples,” such as Felix and Oscar (The Odd Couple), spinster sisters, grandma raising a foster girl child of 16. On this reading, the law is not targeted specifically at homosexuals, and so it would seem to escape condemnation under Romer. On this reading, however, the law utterly lacks a rational basis. It would prohibit extension of a legal benefit to, say, Felix and Oscar (they are members of the same sex) but it would allow extension of the exact same benefit to, say, Will and Grace. No benefits to spinster sisters, but benefits to an elderly brother and his sister living right next door and otherwise indistinguishable from the spinsters. No benefit to grandma raising her foster girl child of 16, but the same benefit to her neighbor raising a 16 year-old boy. And so on.

Reading two: The law does refer exclusively to same-sex sexual relationships. It does not refer to Felix and Oscar or to spinster aunts living out their days together under one roof. It obviously cannot refer to any married couple (for marriage is reserved to union of man and woman). But, on this reading, the law distinguishes between unmarried same-sex sexually involved couples, and unmarried opposite-sex sexually involved couples. On this reading the Nebraska constitution allows no benefits to the former, but permits the latter to receive whatever the legislature is in a mood to bestow. As far as I can tell, Lawrence forbids just such a distinction.

The Nebraska court stumbled upon a legally defensible outcome. But it is still a perfect example of a) judicial activism in support of a radical agenda, and b) the need for laws which stipulate that no benefits traditionally reserved to married couples be extended to any couple or group–straight or gay–predicated upon the presence or assumption of non-marital sexual acts or relationship.


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