Nebraska gay-marriage ruling vastly expands rights

Tuesday, July 12, 2005

In the din of much-publicized First Amendment rulings concerning the Ten Commandments, reporters and their confidential sources and file-sharing on the Internet, relatively little has been said about the recent ground-breaking decision of a federal district judge in Nebraska. The judge’s holding in Citizens for Equal Protection v. Bruning, however, is perhaps the most important First Amendment decision this year — if it stands.

In Bruning, Judge Joseph Bataillon held that a recent amendment to the Nebraska Constitution prohibiting the state from recognizing same-sex marriages violated the First Amendment and other provisions of the U.S. Constitution. In reaching his conclusion, Bataillon expanded the associational rights protected by the First Amendment to unprecedented levels and virtually ensured that the appeal of his ruling (which was filed on June 9) will be fought on First Amendment grounds.

At issue in Bruning is the constitutionality of Article I, Section 29 of the Nebraska Constitution, which provides that “[o]nly marriage between a man and a woman shall be valid or 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 became part of the Nebraska Constitution in 2000 through an initiative process that required citizens to gather approximately 105,000 signatures to place the proposed amendment on the ballot, and then required a majority vote in favor of the proposal. After supporters of Section 29 obtained the necessary signatures, Nebraska voters approved the amendment by 70%-30%.

Shortly thereafter, three anti-discrimination groups — Citizens for Equal Protection, Nebraska Advocates for Justice and Equality and ACLU Nebraska — challenged the constitutionality of Section 29. These groups asserted in part that Section 29 violated the First Amendment because it erected “a discriminatory barrier to advocacy for any form of governmental recognition” of same-sex relationships.

Judge Bataillon accepted the groups’ argument — and then some. Citing 34 U.S. Supreme Court decisions, Bataillon found that Section 29 imposed “significant burdens on both expressive and intimate associational rights” and created “a significant barrier to the plaintiffs’ right to petition or to participate in the political process.” These burdens, he said, effectively denied proponents of same-sex unions the opportunity to work together for legislative changes that would benefit such unions. Therefore, he concluded, these burdens violated the proponents’ First Amendment rights to petition the government and to associate with others in doing so.

The essence of Bataillon’s ruling is his leap from facts that appear undeniable — that Section 29 discouraged people from lobbying for rights of gay and lesbian couples, diminished potential lobbyists’ ability to gather financial and other support for their lobbying and made it more difficult for people to lobby successfully for any extension of gay and lesbian rights — to his conclusion that these political realities violated the First Amendment.

In making this leap, Bataillon relied heavily on the U.S. Supreme Court’s opinion in Romer v. Evans (1996), in which the Court held that Coloradoans could not amend their state constitution to prohibit the state and local governments from recognizing homosexuals as a class of persons protected by anti-discrimination laws.

Romer’s applicability in the Nebraska case, however, is not clear. First, a constitutional amendment permanently depriving a single class of persons of all protections of anti-discrimination laws is more sweeping (and thus more constitutionally suspect) than an amendment designed to limit marital rights to married persons of different sexes. This is particularly true because most, if not all, of the marital rights at issue — such as the rights to make an anatomical gift, to dispose of a deceased’s remains, to inherit property and to be eligible for health insurance and other fringe benefits — are hardly fundamental rights requiring constitutional protection.

Second, the Court in Romer based its ruling on its belief that the Colorado amendment did not further any legitimate state interest and instead served to make gays and lesbians “unequal to everyone else” on all levels. Though the Court referred to the fact that the amendment denied homosexuals equal access to government, it did not hold that the amendment violated their First Amendment rights. Indeed, the Court in its opinion did not even mention the First Amendment. Bataillon’s reliance on Romer to extend First Amendment rights expansively therefore seems misplaced.

Bataillon’s leap also appears to lack logical support. Under his reasoning, any constitutional amendment that discourages a group from participating in the political process violates the First Amendment. Doesn’t the 13th Amendment, however, discourage persons who might wish to re-institute slavery? Doesn’t the 19th Amendment discourage those who might wish to take away a woman’s right to vote? Didn’t the 22nd Amendment discourage those who might have wished for Presidents Reagan or Clinton to serve a third term? Surely the scope of the First Amendment’s right of association cannot be as broad — or as potent — as Bataillon suggests.

In his decision, the judge also held that Section 29 violated the equal-protection clause of the 14th Amendment and was an unconstitutional “bill of attainder” (legislation that determines guilt and punishes an identifiable individual without the benefit of a judicial trial). In both of these findings, however, Bataillon relied in part on his belief that Section 29 denied gays and lesbians access to the political process, noting that these issues “dove-tailed” with his First Amendment analysis.

No one, of course, can be sure how the 8th U.S. Circuit Court of Appeals will approach the appeal of Bruning, particularly because the appeal undoubtedly will intensify the “culture wars” (to use Justice Antonin Scalia’s phrase from his dissent in Romer) between those who favor and those who abhor rights for gays and lesbians.

Given the sweeping nature of Bataillon’s opinion, however, the 8th Circuit — and perhaps ultimately the Supreme Court — will have to determine the extent to which the First Amendment protects the rights of political minorities.