Nebraska Marriage Ban Struck Down

Federal court throws out state constitutional amendment approved by voters in 2000

Firing a new shot in the culture wars surrounding same-sex marriage, a federal judge in Nebraska ruled on May 12 that voters in that state violated the constitutional rights of lesbians and gay men under three different legal theories when they amended their state constitution in 2000 to ban same-sex marriages and any other form of legal recognition for unmarried couples.

Judge Joseph F. Bataillon, appointed to the federal bench by Pres. Bill Clinton and unanimously confirmed by a Republican-controlled Senate in 1997, refrained from ruling on whether Nebraska could amend its state constitution simply to ban same-sex marriages without offending the federal Constitution.

Finding that Section 29, the multi-part amendment that state voters had approved, could not be “severed” into its distinct parts for purposes of constitutional analysis, he focused on how the language banning any legal recognition for unmarried couples imposed impermissible political disabilities on gay people in advancing their civil rights through ordinary lobbying of public officials.

Bataillon’s ruling, in response to challenges from Lambda Legal, Nebraska gay rights groups and the state chapter of the American Civil Liberties Union, necessarily injected new vigor in the push for a proposed Federal Marriage Amendment. Nebraska’s Chuck Hagel, a Republican U.S. Senator, quickly pointed out that the court had used the federal Constitution to override a “democratic” choice by Nebraska voters.

Bataillon accepted three distinct legal theories, each based on a different provision of the federal Constitution—the First Amendment’s protection for political association, the Fourteenth Amendment’s guarantee of equal protection and the bill of attainder clause, a little-used provision that prohibits legislative imposition of punishment on individuals or discernable groups.

The First Amendment argument is the most straightforward. The right of people to seek redress for their grievances from the government and the right to join in political associations for that purpose are fundamental to that amendment. The court found that by placing in their constitution an absolute prohibition against any form of legal recognition for unmarried couples, Nebraska had not only circumvented these rights but also placed a severe burden on the right of intimate association.

Bataillon’s conclusion was bolstered by a written opinion from the Nebraska attorney general, Jon C. Bruning, who argued that a legislative proposal to allow same-sex partners to make decisions about the disposition of a deceased partner’s remains would violate Section 29. Such reasoning would preclude domestic partnership benefits and a host of other particular benefits for gay and lesbian couples.

The state had argued that Section 29 did not disenfranchise gay people because they “may obtain the rights via legislation which married couples enjoy, so long as those rights are not premised on recognition of a same-sex relationship.”

“The fallacy of the State’s circular logic is apparent,” Bataillon responded. “In making this statement, the State concedes that full access to the political process and enjoyment of rights of married couples will be forbidden if premised on the recognition of a same-sex relationship.”

“A blanket prospective prohibition on any type of legal recognition of a same-sex relationship not only denies the benefits of favorable legislation to these groups, it prohibits them from even asking for such benefits,” Bataillon concluded.

Turning to the equal protection theory, Bataillon found that the Nebraska amendment presented the same constitutional flaws as Colorado Amendment 2, a measure that banned any state or local non-discrimination protections for gays and was declared unconstitutional by the Supreme Court in 1996 in Romer v. Evans. Though the Nebraska amendment did not specifically mention lesbians and gay men as the affected class, Bataillon found that the intention behind the two amendments was the same—to disembowel a specific segment of the population from obtaining equal rights.

“As in Romer, the lack of connection between the reach of the amendment and its purported purpose [in this case to bar same-sex marriage] is so attenuated that it provides evidence that Section 29 has no rational relationship to any legitimate state interest,” Bataillon wrote.

The judge speculated that Section 29 could undermine the ability of same-sex couples to make contracts, enforce agreements regarding their cohabitation and undertake real estate transactions together, none of which was relevant to the goal of “protecting marriage.” In a footnote, Bataillon wrote that Section 29 had stymied an attempt by the City of Omaha to negotiate domestic partnership benefits with the union representing city firefighters.

Bataillon also accepted the argument that Section 29 was an unconstitutional bill of attainder, something of an imaginative leap. The bill of attainder provision is generally considered in terms of legislators imposing punishment on specific individuals or groups without any judicial process. The judge found that imposing political disqualifications has long been a form of punishment, noting how many states forbid convicted criminals from voting.

Bataillon made clear that he was not ruling on the question whether the federal Constitution requires Nebraska to let same-sex couples marry, though some of his rhetoric, as well as his reliance on certain passages from the Supreme Court’s 2003 Lawrence v. Texas sodomy decision, could lend support to such a claim.

If the ruling stands up to review, it will probably lead to a new referendum to amend Nebraska’s constitution with narrower language. Bataillon’s decision lends support to lawsuits filed in several other states that have adopted anti-marriage amendments that go beyond merely defining marriage by prohibiting civil unions and other forms of same-sex partner recognition.

The State of Nebraska will appeal the decision to the U.S. Court of Appeals for the 8th Circuit based in St. Louis.