The Corner

Marriage in Nebraska

Bill Duncan of Brigham Young University and the Marriage Law Project offers some analysis of what’s going on in Nebraska vis-à-vis marriage law:

You might be interested in a decision yesterday in the case challenging Nebraska’s state constitutional amendment defining marriage and prohibiting domestic partnerships.

The amendment, Section 29, was approved by over 60% of the voters in the 2000 election. The local affiliate of the ACLU had threatened to sue but did not until this year. They have made a novel claim that this state constitutional amendment violates the federal constitution because it deprives the plaintiffs (groups that lobby for gay rights legislation) of access to the political process. The sleight of hand here is characterizing an amendment that settles the substance of a question (whether marriage will be redefined to include same-sex couples) as an infringement of procedural rights (can activists petition the legislature to get what they want). The state’s position has been that plaintiffs are free to amend the constitution as the group of citizens who proposed Section 29 did or to get legislation enacted that does not violate section 29. Their concern is that any amendment on a substantive issue could be seen as disenfranchising people who disagree with the amendment. For instance, under plaintiffs theory, are Untarians suffering a constitutional deprivation because even though they may lobby the Unicameral to make Unitarianism the state religion, the constitution would prevent that result?

The state had motioned to dismiss the case based largely on standing grounds, arguing that no one has been affected by the law and that the plaintiffs lawsuit is premature. Yesterday, however Judge Joseph Bataillon of the Nebraska federal district court denied the motion to dismiss. The startling aspect of the decision is that the judge seemed not to be content with merely giving the plaintiffs the benefit of the doubt on their claims but showing a remarkable amount of sympathy with the plaintiffs’ novel claims.

The court accepted the plaintiffs’ theory of deprivation of their access to the political process. However, the most novel aspect of the court’s decision was its handling of the plaintiffs’ claim that Section 29 is an unconstitutional bill of attainder (a form of legislative punishment used to avoid a jury trial prohibited by Article I, section 9 of the U.S. Constitution). This required a finding that the amendment (1) is directed towards a specific individual or group, (2) inflicts a punishment, and (3) occurs without a judicial trial. The court first makes the improbable holding that the group affected is “civil unions” and “domestic partners” without making any attempt to clarify who that group describes. The punishment the court sees is “prohibit[ing] their [the plaintiffs’] political ability to effectuate changes proposed by the majority.” In a most troubling segment of the opinion, the court focused on the comments of one (non-mainstream) supporter of the amendment to hold that Section 29 was intended to punish same-sex couples. This despite the support of the Catholic Bishops of Nebraska, Nebraska’s state family policy council (Family First) and many others.

On the bright side, the court did not hold that Section 29 is a letter of marque or reprisal in violation of the Constitution’s Article I, section 10.

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