U.S. Judge Rejects Nebraska Gay-Marriage Ban

Nebraskans should simply reject the US Judge's rejection. Do not let it enter into their minds. As far as Nebraska citizens are concerned, gay marriage is banned. Period. Some Judge saying otherwise does not make it not so.

Eugene Volokh thinks the judge's reasoning will not survive scrutiny by the federal appeals court for the Midwest. In any event, the preservation of marriage is a compelling state interest and the definition adopted by the voters must be given due deference by the courts. This was NOT done here. Reasonable minds may differ about whether marriage/civil unions should include more than opposite sex couples but in a democracy the majority's desire to block social change is not necessarily an act of bigotry or revenge against a minority. And Judge Bataillon's reading of Nebraska's state constitutional amendment was overly vague and broad and improper to the objectives he wanted to ensure.

(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)

Article III, Section 1 says that the federal judicial power shall extend to all cases arising under federal laws or the U.S. Constitution, and thus a court may conclude that Congress violated Article III, Section 1 if it took the power to review "arising under" cases from all federal courts.

Congress has already done this at least once before. In 2002, it stripped all federal courts of jurisdiction to hear suits challenging brush clearing in the Black Hills. So far the courts haven't stricken that down.

But looking beyond that, I think the words of Article III are clear in that they're defining the full extent of the judicial power of the United States. But the fact that the power exists doesn't mean it must be exercised, and Congress was given power over whether it shall be exercised.

It wasn't even a foregone conclusion when the Constitution was ratified that there even would be lower federal courts. During the drafting of it, there was a sharp debate between those who wanted there to be no lower federal courts at all, and those who wanted the Constitution to mandate their existence. The compromise that was adopted was for Congress to be given the power to decide the question. Since there was a very distinct possibility that there wouldn't be lower federal courts at all, it's hard to imagine that there was some kind of implied limitation to Congress's power to restrict SCOTUS's appellate jurisdiction, that said that they must transfer it to some lower court that might not even have been created. It seems pretty clear that if such a limitation had been intended, it would have been explicit.

"I don't see this judge striking down anti-gun laws that violate the 2nd amendment. Pretty selective."

As noted in my original post, there is a large distinction to be drawn between theory and reality.

I have never known a liberal court to let a congressional act stand in its way on anything in the court's pursuit of the "perfecting" of society. The liberal bench views itself as life-tenured superlegislature, a house of lords accountable to no person, government, or claim save its own liberal view of how society ought to ordered and run.

Then they may be in for a bit of an education, if they try to assume jurisdiction they don't have.

Amazing. So much talk about the Judges opinion and no link to the opinion itself. Hmmmmmm, just wondering how those who have posted here have arrived at their opinion concerning the judge’s opinion which they probably have not even read.

Does anyone have a link to the opinion?

If a judge concludes that 2+2=5, it's not necessary to "read his opinion" to see that he's wrong.

"Since there was a very distinct possibility that there wouldn't be lower federal courts at all, it's hard to imagine that there was some kind of implied limitation to Congress's power to restrict SCOTUS's appellate jurisdiction, that said that they must transfer it to some lower court that might not even have been created."

The argument is that, if Congress had not created any "inferior courts," then it could only limit the Supreme Court's appellate jurisdiction by adding the type of case to the Court's original jurisdiction.

I hadn't heard about the Black Hills law, but I'm surprised that environmental groups haven't challenged it.

I hope a state court doesn't rule that clearing brush from the Black Hills violates the U.S. Constitution, because if it does there will be no way to take the case to federal court.

The argument is that, if Congress had not created any "inferior courts," then it could only limit the Supreme Court's appellate jurisdiction by adding the type of case to the Court's original jurisdiction.

I hadn't heard that argument. The court ruled in Marbury vs Madison that Congress does not have the power to add to its original jurisdiction, and Congress has, over the years, taken appellate jurisdiction away from it without transferring it to its original jurisdiction (though most of the time it has transferred the jurisdiction to lower courts).

I hope a state court doesn't rule that clearing brush from the Black Hills violates the U.S. Constitution, because if it does there will be no way to take the case to federal court.

That's actually a very valid point.

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Response:

It is entirely possible for a federal district court to strike down a state constitutional amendment. What few people debating this issue understand is the manner in which our system of judicial federalism operates. A state constitution may grant to the persons under the jurisdiction of that state rights which are **not** granted them under the US Constitution. For example, many state constitutions very specifically grant to the citizens of those states an explicit right to privacy, whereas the US Constitution, as interpreted by the US Supreme Court, limits this right to privacy; only recently did the US Supreme Court expand the reach of this right to privacy to include the right of consenting gay adults to have sex in private (see Lawrence v. Texas, 539 U.S. 558 (2003)). Gay plaintiffs succeeded in taking down consensual sodomy statutes in several states that had constitutions that were more generous than the US Constitution (e.g., Arkansas, Kentucky, and Georgia) in terms of granting their citizens a right to privacy. In short, a state constitutional amendment can grant to the citizens of that state **more** rights than are granted them by the US Constitution. However, the reverse is not true. No state constitution can be amended in such a manner as to **deny** to any persons within the jurisdiction of that state those rights that are guaranteed them by the US Constitution. For example, no state may modify its constitution in such a manner as to deprive any of its citizens of their First Amendment rights. Suppose, for example, that a state modified its constitution to declare that only Christians could receive food stamps. It would not matter whether the vote in favor of such an amendment was overwhelming; even were 99 per cent of the citizens of that state to vote for the amendment, the amendment could be (and certainly would be) struck down as being violative of the US Constitution. This hypothetical amendment would violate the First Amendment to the US Constitution, and the Fourteenth Amendment's command that no state may deny to any person within its jurisdiction the equal protection of the laws.
It is difficult to determine which of these US Constitutional guarantees would be violated more egregiously by such a state constitutional amendment. The Nebraska anti-gay amendment is unconstitutional for so many reasons that it is difficult to know where to begin. What follows is my personal analysis of the decision handed down by the federal district judge: The federal district judge issued an opinion (Citizens for Equal Protection, Inc. v. Attorney General Jon C. Bruning and Governor Michael O. Johanns, 4:03CV3155) striking down an amendment (hereafter Section 29) to the Nebraska State Constitution which was enacted by the voters through the initiative and ballot referendum process of 2000. This modification (Section 29) altered the Nebraska constitution to read "[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." Note that this went way beyond the "defense" of marriage. It was the first addition to a state constitution declaring that civil unions would not be recognized in another state following the Vermont ruling (Baker v. State, 1998) that resulted in the creation of "civil unions" within the State of Vermont. This amendment went even further, outlawing such unions. This state constitutional amendment placed gay people on a lower tier as second-class citizens, making it impossible for gay citizens, and only for gay citizens, to petition the unicameral legislature for the passage of laws respecting gay relationships, of all forms and at all levels. The aggrieved parties filed suit using the mechanism codified at 42 U.S.C. sec. 1983, which permits the federal courts to intervene when state actors deprive citizens of federally-recognized constitutional rights under color of state law. The judge handed down an opinion which relied heavily on Romer v. Evans, 517 U.S. 620 (1996) and less heavily on Lawrence v. Texas, 539 U.S. 558 (2003) (do you see how great it feels to have case law on one's side?). The judge also implicated the First Amendment in a novel, yet extremely well-argued, analysis. The First Amendment protects more than merely freedom of speech or the right to petition the legislature for redress of grievances. Derivative of the right to free speech are the right to expressive association and the right to intimate association. There is nothing radical or novel about the finding that these rights are (unstated) "fundamental" rights; what is novel is the manner in which they have been employed in this decision. The right to expressive association is derivative of the right to freedom of speech; this right can be exercised by large numbers of people banding together for the purposes of advocacy. Recognition of the fact that people can and do form bonds for the purpose of introducing new ideas into the marketplace of ideas, the US Supreme Court has held that people have the right to freedom of expressive association. For example, a gay rights rally would be a classic invocation of the right to expressive association. The right to intimate association also derives its existence from the First Amendment. The constitutional shelter afforded intimate relationships reflects the realization that "individuals draw much of their emotional enrichment from close ties with others" and "[p]rotecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one's identity that is central to any concept of liberty (Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984)). The existence of the right to intimate association and the right to expressive association have never been in question; not even Scalia would dismiss those rights as invalid or constitutionally infirm, since there is so much case law that recognizes and protects them that overturning their existence as "fundamental" rights would literally wreak havoc on long lines of case law (not to mention make a mockery of stare decisis). The judge in this case recognized the existence of these rights, and went on to point out the damage that Section 29 did to the political process by making it impossible for gay people to petition their state legislature (the unicameral chamber) for marriage rights or domestic partnership rights on the same level as may heterosexuals (who do not need to do so). At this point, the judge correctly noted that many of the rights protected by the First Amendment, particularly in the area of intimate associative rights, are inextricably intertwined with liberty interests that the Court had already recognized as deriving from the Due Process Clauses under the doctrine of substantive due process. Under this doctrine, the courts may actually review the substance of state action, not merely the fairness of the procedures employed by the state in order to implement that substance (see, for example, Palko v. Connecticut, 302 U.S. 319 (1937)). The Court has just recognized that gay people have the right under the Due Process Clause to engage in intimate sexual conduct (see Lawrence, supra, overturning Bowers v. Hardwick, 478 U.S. 186 (1986)). Clearly, there is some degree of overlap between the rights afforded people under the Due Process Clauses (many of which rights are also considered to be "fundamental" in nature) and the rights afforded people under the right of intimate association protected by the First Amendment to the US Constitution. In all cases in which a state statute or state constitutional amendment impinges upon a "fundamental" right, the Courts analyze the constitutionality of the measure in question using the standard of review known as "strict scrutiny." Under strict scrutiny, the burden falls on the state to show that the challenged legislation is necessary to further a compelling state interest, and that the challenged legislation has been drafted so as to further that interest in the manner that impinges on the liberty interest in question in the least restrictive manner possible (the statute has to be "narrowly tailored" so as to promote the right in question in a manner that impinges on the fundamental liberty interest at stake in the least restrictive manner possible). The court then did something interesting. The US Supreme Court, in Romer (supra), affirmed the decision handed down by the Colorado Supreme Court. The Colorado Supreme Court had relied upon a string of voting rights cases (Reynolds v. Sims, 377 U.S. 533 (1964); Carrington v. Rash, 380 U.S. 89 (1965); Harper v. Virginia Bd. of Elections, 383 U.S. 663 (1966); Williams v. Rhodes, 393 U.S. 23 (1968) and upon a string of cases involving discriminatory restructuring of governmental decisionmaking (Hunter v. Erickson, 393 U.S. 385 (1969); Reitman v. Mulkey, 387 U.S. 369 (1967); Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982); Gordon v. Lance, 403 U.S. 1 (1971)) to identify a fundamental right to participate equally in the political process. Although the US Supreme Court affirmed Romer on other grounds, it did not repudiate or invalidate the analysis of the state court, as has been so often incorrectly asserted ("We...now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court" (see Romer, supra)). Several courts have misconstrued this statement to imply rejection of the analysis adopted by the state court; nowhere in the text of the majority decision was this analysis rejected, and it is entirely possible for a court of appeals to affirm a judgment on different legal grounds from those adopted by the trial court, without actually rejecting the legal grounds adopted by the trial court. (It is remarkable to note the manner in which senior US Courts of Appeals have bungled equal protection analysis. The US Court of Appeals for the Sixth Circuit is perhaps the most incompetent in this regard. This Court of Appeals, in a particularly bungled analysis implicating Fourteenth Amendment equal protection considerations, issued an opinion in which it actually declared that homosexuals could not avail themselves of the guarantee of the equal protection of the laws under the Equal Protection Clause at all, due to the fact that it was impossible to identify homosexuals as a group for the purpose of equal protection analysis ("Assuming arguendo the truth of the scientific theory that sexual orientation is a "characteristic beyond the control of the individual" as found by the trial court, see id. at 437, the reality remains that no law can successfully be drafted that is calculated to burden or penalize, or to benefit or protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics such as innate desires, drives, and thoughts. Those persons having a homosexual "orientation" simply do not, as such, comprise an identifiable class. Many homosexuals successfully conceal their orientation. Because homosexuals generally are not identifiable "on sight" unless they elect to be so identifiable by conduct (such as public displays of homosexual affection or self-proclamation of homosexual tendencies), they cannot constitute a suspect class or a quasi-suspect class because "they do not [necessarily] exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group[.]" Bowen v. Gilliard, 483 U.S. 587, 602, 107 S. Ct. 3008, 3018 (1987)) (Equality Foundation of Greater Cincinnati, Inc.. v City of Cincinnati, 54F.3d 261 (6th Cir. 1995), vacated, 116 S.Ct. 2519 (1996) (internal citations omitted)). This blunder caused the US Court of Appeals for the Seventh Circuit, in an unrelated case (Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996)), to comment on the analytical incompetence of the Sixth Circuit in a derisive footnote: "FN10. The Sixth Circuit has ruled that: [T]he reality remains that no law can successfully be drafted that is calculated to penalize, or to benefit, or to protect, an unidentifiable group or class of individuals whose identity is defined by subjective and unapparent characteristics such as innate desires, drives, and thoughts. Those persons having a homosexual "orientation" simply do not, as such, comprise an identifiable class.... Because homosexuals generally are not identifiable "on sight" ... they cannot constitute a suspect class or a quasi-suspect class...." Equality Foundation of Greater Cincinnati v. City of Cincinnati, 54 F.3d 261, 267 (6th Cir.1995). The Sixth Circuit's analysis appears to conflate the requirement that discrimination be based on membership in a definable class to trigger equal protection analysis, see Albright, 975 F.2d at 348, Falls, 875 F.2d at 148, with the requirement that the class have "obvious, immutable, or distinguishing characteristics" to trigger heightened or strict scrutiny. High Tech Gays v. Defense Indust. Sec. Clearance Office, 895 F.2d 563, 573 (9th Cir.1990). To the extent that the Sixth Circuit's position conflicts with our prior holdings, we are bound by the precedent of this circuit. We express no opinion on whether sexual orientation is an "obvious, immutable, or distinguishing" characteristic. However, it does seem dubious to suggest that someone would choose to be homosexual, absent some genetic predisposition, given the considerable discrimination leveled against homosexuals." (Nabozny v. Podlesny, 92 F.3d 446 (7th Cir.1996)). (In short, the Seventh Circuit took the Sixth Circuit to task for its botched equal protection analysis.) (emphasis added) The Seventh Circuit, which has a reputation for being a scholarly and conservative Court of Appeals, also predicted, correctly, that Bowers would soon be overturned: "FN12. Of course Bowers will soon be eclipsed in the area of equal protection by the Supreme Court's holding in Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Romer, which was decided following the oral argument in this case, struck down on equal protection grounds a Colorado constitutional amendment that discriminated against homosexuals. Although Romer bolsters our analysis in this case to some extent, we do not rely on it. To do so would be especially inappropriate in the context of rejecting the defendants' qualified immunity argument."). Turning back to the district court's decision striking down Section 29 of the Nebraska Constitution, the district court relied heavily on the logic relied upon by the Colorado Supreme Court, which issued one opinion upholding the issuance of a preliminary injunction by the District Court for the City and County of Denver (Evans v. Romer, 854 P.2d 1270 (Colo. 1993) (Evans I)) preventing Amendment 2 from taking effect, and a second opinion (Evans v. Romer, 882 P.2d 1335 (Colo. 1994) (Evans II)) upholding the issuance of a permanent injunction by the same state court, declaring Amendment 2 to be violative of the Fourteenth Amendment to the US Constitution and enjoining the state from enforcing the amendment. The federal district court noted that although the US Supreme Court had affirmed Romer on grounds different from those adopted by the state court, the US Supreme Court did not reject the grounds adopted by the state court. The federal district court cited Evans I, noting that "[s]uch a structuring of the political process undoubtedly is contrary to the notion" that the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications. Carefully analyzing Romer, the federal district court noted that the US Supreme Court had identified the same constitutional injuries in Romer as the Colorado Supreme Court had identified. The federal district court noted the "ultimate effect" of Amendment 2 identified by the US Supreme Court, which was to prohibit any governmental entity from adopting similar, or more protective, measures in the future unless the state constitution was first re-amended to reverse Amendment 2 (a practical impossibility in the current political climate). The US Supreme Court had identified the changes in the law as being "sweeping" and "far-reaching." The US Supreme Court noted that Amendment 2 did more than merely deny to gay Coloradans "special rights." Amendment 2 withheld from gay people those protections "taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society." The federal district court noted that the US Supreme Court held that Amendment 2 imposed upon gay Coloradans a "special disability." To make matters worse, the US Supreme Court held that Amendment 2 failed, and even defied, the conventional inquiry of whether a law that neither impinges upon a fundamental right nor targets a suspect class, is rationally related to the promotion of a legitimate state interest (Heller v. Doe, 509 U.S. 312 (1993)) (such laws frequently include social and economic legislation). It was therefore unnecessary for the US Supreme Court to determine whether it was appropriate to subject Amendment 2 to strict scrutiny. Finding that Amendment 2 failed the conventional inquiry, the US Supreme Court struck down Amendment 2, declaring that "[a] State cannot so deem a class of persons a stranger to its laws." Legislation that impacts on the First Amendment rights of individuals, or of members of identifiable groups, can be declared unconstitutional if, in addition to targeting speech or expressive behavior that does not enjoy First Amendment protection (obscenity, direct incitement to imminent lawless action (see Brandenburg v. Ohio, 395 U.S. 444 (1969))), it is overbroad or vague. Imprecise laws can be attacked for overbreadth; this permits the invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial in relation to the statute's legitimate sweep. Phrased differently, a law can be declared invalid for overbreadth on First Amendment grounds if its legitimate applications result in a "chilling effect" on expressive behavior or conduct that does enjoy First Amendment protection (see City of Chicago v. Morales, 527 U.S. 41, 52 (1999)). Such legislation can also be declared void for vagueness if it fails to establish standards that are sufficient to guard against the arbitrary deprivation of constitutional rights (Kolender v. Lawson, 461 U.S. 352, 358 (1983)). Turning back to Section 29, the federal district court found that Section 29, as written and as applied, burdens both the right of intimate association and the right of expressive association, and "creates a significant barrier to the plaintiffs' right to petition or to participate in the political process." This would have been sufficient to end the inquiry; however, the court also held that the language of Section 29 was so vague and imprecise as to impose significant restraints on numerous relationships or living arrangements. The court noted that the prospective prohibition of any relationship "similar to" marriage was both exceedingly vague and overly broad. Threatened relationships include those between same-sex roommates, co-tenants, foster parents, and related people of the same sex who share living arrangements, expenses, custody of children, or ownership of property. One does not have to be a constitutional scholar to note the prospective impact of Section 29 to numerous relationships involving members of the same sex. It is important to note, at this point, that the State of Nebraska had already construed Issue 29 prior to this test of its constitutionality. The construction adopted by 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." The federal district court provided numerous examples of relationships that would be adversely impacted by the state's broad reading of Section 29. Many Nebraskans believe that some rights or benefits should be extended to same-sex couples. The First Amendment guarantees them the right to petition the government for such rights and benefits, as well as to advocate in favor of the granting of such rights and benefits. By its operation, Section 29 would discourage and dissuade such individuals from enthusiastic advocacy of such goals. This has been conceded by the state. Section 29 would also discourage and dissuade such individuals from associating with each other and organizing in pursuit of these goals. The Court held that the most important constitutional infirmity at the heart of Section 29 lies in the fact that Section 29 burdens the promotion of, or lobbying for, any legislative or governmental action that would eventually extend recognition of, or lobbying for, recognition of the rights of gay people. Furthermore, Section 29 would also impact family law, custody, and adoption issues. The state adopted a position that this commentator considers to be ludicrous. The state admits that "[p]laintiffs have full access to the political process and 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 tautological reasoning here is apparent: the state concedes that full access to the political process and enjoyment of rights of married couples would be forbidden if premised on the recognition of a same-sex relationship. The state then prohibits all recognition of same-sex relationships, since the state regards any proposed legislation that would elevate a same-sex couple to the "same plane" as a married couple amounts to "a recognition" of the same-sex relationship. The problem here is so obvious that there should be no need for further exposition. Full access to the political process is expressly denied to the people who most need and who most ardently seek recognition of same-sex relationships. This places people in same-sex relationships in the bizarre position of not even being able to ask the legislature for recognition of their relationships. As the court so eloquently noted, "[a] blanket prospective prohibition of 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" [emphasis added]. The court went on to note that enforcement of Section 29 in accordance with the state's construction of the amendment is "tantamount to denial of access to the means to effect any sort of social or political change." The court then turned to the equal protection claim advanced by the plaintiffs, noting that the plaintiffs seek only a "level playing field" that would permit them to access the Nebraska Unicameral to lobby for legal protections that have already been permitted in other states. The brief submitted by the plaintiffs made it very clear that they merely seek to advocate on the same terms as other persons. For example, they wish to advocate for the passage of legislation that would make domestic partners responsible for each other's living expenses; allow a partner hospital visitation; provide for a partner to make decisions pertaining to healthcare, organ donation, and funeral arrangements; permit bereavement leave; permit private employer benefits; allow survivorship, intestacy and elective share; and permit same-sex couples to adopt children. For example, the domestic partners of Iowa state employees receive health insurance benefits; under Section 29 as interpreted by the state and as written, such benefits would be unconstitutional in Nebraska were Section 29 to be implemented. It is at this point in the opinion that the value of Romer as precedent and its impact as prescriptive (and proscriptive) case law can be discerned. In Romer, the US Supreme Court held that the sheer breadth of Amendment 2, coupled with the fact that it was so clearly intended to target gay Coloradans, gave rise to the inevitable inference that it was intended to inflict harm on homosexual persons. In Romer, the Court cited, with approval, the central precept elucidated in United States Department of Agriculture v. Moreno, 413 U.S. 528 (1973) -- a bare desire to inflict harm on a politically unpopular group can never constitute a legitimate state interest. The US Supreme Court made it clear that it considered Amendment 2 to be targeted against homosexual persons as a result of social and moral disapproval. In Lawrence, supra, the Court made it very clear that moral disapproval absent a genuine rational basis simply did not justify the existence of sodomy statutes that, in some states, rendered gay men and lesbians unconvicted felons. For equal protection purposes, the Court has adopted a more stringent standard of review when dealing with cases in which a fundamental right is not implicated and in which the targeted class is not suspect, but in which legislation adversely targeting the group in question is based on irrational prejudice, or animus, directed towards members of that group. This variant of rational basis review has been named "rational basis with bite" or "rational basis with teeth," and examples include Moreno (supra), Lawrence, Romer, and City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432 (1985). The district court found that Section 29 was "indistinguishable" from the Colorado constitutional amendment struck down in Romer. Nebraska focused on the same class of its citizens as did Colorado. Like Amendment 2, Section 29 attempts to impose a "broad disability" on a single group. And as in Romer, the lack of connection between the reach of the amendment and its purported purpose is so attenuated as to provide no evidence of a rational relationship to a legitimate state interest. As in Romer, the court emphasized that "[t]he principle that government and each of its parts remain open on impartial terms to all who seek its assistance" is "[c]entral both to the idea of the rule of law and to our own Constitution's guarantee of equal protection." Romer, 517 U.S. at 633. The court pulled no punches. It went on to note that "Section 29 is so far beyond defining marriage that [this] court can only conclude that the intent and purpose of the amendment is based on animus against this class." Furthermore, 'the intention of Section 29 is to make this class of people unequal, thereby disadvantaging a group, a purpose that violates the Equal Protection Clause of the United States Constitution." The state attempted to argue that Amendment 2 was far more harmful to gay people than is Section 29. The state also sought refuge behind the position that Section 29 attempted only to deal with the issue of marriage. The federal district court found that the primary problem at issue with Romer was not its retrospective application to existing non-discrimination measures, but its prospective effect (or "ultimate effect"). The sweep (and "ultimate effect") of Section 29 reaches existing contracts, regulations, and benefits that may be conditioned upon a civil union or domestic partnership (medical leave act, adoption, insurance benefits, etc.). It was the fact that the plaintiffs were denied the right to seek these benefits that made Section 29 so pernicious. In short, Section 29 interferes with the right of intimate association and the right of expressive association (both derivative of the First Amendment, and both considered to be "fundamental" rights in the pantheon of rights afforded all citizens by the US Constitution). It interferes with the right to petition the government for redress of grievance. It interferes with the liberty interests afforded all persons under the Due Process Clause of the Fourteenth Amendment. It interferes with the Fourteenth Amendment's promise that no state may deny to any person within its jurisdiction the equal protection of the laws. It creates a political underclass that may not even ask for, or advocate for, the granting of rights and benefits conditioned upon same-sex relationships, while leaving this right intact for people who condition their requests upon the existence of opposite-sex relationships. Furthermore, Section 29, by its terms and by the construction freely placed on its wording by the state, places gay people in the position of not having an equal voice before their legislature. Perhaps the weakest argument set forth by the state was that Section 29 represents the will of the people and should therefore be respected. Courts of law grant great deference to the will of the people, since the federal judiciary is not a superlegislature that crafts law and public policy. However, "[o]ne's right to life, liberty, and property...and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943). The court clarified this concept, making it clear that no majority may, under our system of government, deprive citizens of their constitutional rights merely because that majority may harbor strong feelings of antipathy towards those citizens. It was in the equal protection discussion that the court was most forceful, making it absolutely clear that it found Section 29 to be profoundly unconstitutional on equal protection grounds. The court then envisioned many situations involving "civil unions" that could run afoul of Section 29. This section could render a lease agreement between two same-sex tenants who share an apartment (roommates) invalid, depending on interpretation of the phrase "similar same-sex relationship." The state would have to investigate such relationships as a threshold matter to know whether such arrangements rose to the level of "marital relationships." A very activist government indeed would be required to undertake such investigations. Its analysis still not complete, the court then found that Section 29 constituted a bill of attainder -- a measure that violates the Bill of Attainder Clause by singling out gay people for legislative punishment. The court had already found, in an earlier opinion, that Section 29 constituted a bill of attainder (see Citizens for Equal Protection v. Bruning, 290 F.Supp.2d 1004, 1008-1011 (D. Neb. 2003)). To be considered a bill of attainder, a legislative act must (1) apply to named individuals or easily ascertainable members of a group, (2) inflict punishment, and (3) be without judicial trial (see United States v. Lovett, 328 U.S. 303, 315 (1946)). A law "is an attainder if, despite its dishonest protestation, it fails the requisite test of generality and prospectively. It makes it a capital crime to be who I am. Put another way, it wrongly designates criminals rather than crimes." Id. at 211. By its terms, Section 29 targets the specific group of people who have entered into, will enter into, or seek to enter into "civil unions" and "domestic partnerships" and describes the group's conduct as "the uniting of two persons of the same sex." There is no dispute that Section 29 operates without judicial trial before preventing the legal recognition of same-sex relationships. The court then engaged in considerable analysis to determine whether Section 29 inflicts legislative punishment. A legislative act that singles out a group and restricts its ability to effect political change amounts to punishment and can be a bill of attainder.(United States v. Brown, 381 U.S. 437, 447 (1965)). The court found that Section 29 singles out gay people and is intended to prohibit their political ability to effectuate changes opposed by the majority (Id. at 442). It is here that the spite and cruelty of those who authored Section 29 came back to haunt them and to assist this judge in finding Section 29 to be unconstitutional. Guyla Mills, who led the petition drive, made statements to the effect (incorporated into the record) that Section 29 was to make known that homosexual and heterosexual marriages are not equivalents and that homosexual relationships are morally inferior. In briefing the court, the state argued that "There is no civil right to control the terms on which a political battle will be fought, i.e., on a local, employer-by-employer,, or legislative level rather than on a state-wide voter initiative level." Filing No. 66, Defs.' Trial Brief at 1"T]hey do not have a constitutional right to win or force the battle to be fought on their terms." Id. These statements made it clear that the intent of Section 29 is to silence the plaintiffs' views and dilute their political strength. Prior to the passage of Section 29, plaintiffs had the right to freely access and use the political process, in particular, the legislature. Section 29 does not merely withhold the benefit of marriage; it operates to prohibit persons in a same-sex relationship from working to ever obtain governmental benefits or legal recognition, which was a right that they enjoyed on equal terms with other Nebraskans before the passage of Section 29. If the purpose of Section 29 was merely to maintain the common-law definition of marriage, there would be no need to prohibit all forms of government protection or to preclude domestic partnerships and civil unions. Having made mincemeat of Section 29, the federal district court declared Section 29 to be violative of the US Constitution and permanently enjoined enforcement of Section 29. It is important to note that the federal district court did not create gay marriage or domestic partnership in the State of Nebraska. The district court did not establish civil unions. It merely moved the political goalposts back to their original position prior to the enactment of Section 29. It is almost certain that this decision will be appealed to the US Court of Appeals for the Eighth Circuit, where its future remains uncertain. The district court went to considerable lengths to cover all of the bases, finding that Section 29 was unconstitutional for numerous reasons, all of which would have to be reversed by the Eighth Circuit in order for the opinion to be reversed. Should another circuit reach a different result on a similar, or identical question of law, there is an increased likelihood that the US Supreme Court will grant certiorari. It is the writer's opinion that, should the US Court of Appeals for the Eighth Circuit uphold the district court's decision, the US Supreme Court will refrain from entering the fray. However, this is purely a matter of conjecture; it remains to be seen how the defendants will respond, and the quality of their appellate briefs will doubtless be examined in considerable detail before an appeal is heard. Philip Chandler The US Constitution acts as a floor, but not as a ceiling, to the rights that the citizens of the states making up the US may enjoy.

The following was posted:

Did I read this right?

A judge was able to overturn a state constitutional ammendment?

How on Earth is that even possible?

The decision by the federal district court, overturning the state constitutional amendment in question, has since been reversed in an analytically impoverished decision hnded down by a three-judge panel of the US Court of Appeals for the Eighth Circuit (see _Citizens for Equal Protection v. Bruning_, 05-2604 (2006)). Nevertheless, I believe that it is crucial to explain to any serious readers on this forum just how and why a federal judge can overturn a state constitutional amendment (or, for that matter, just how and why a state court judge can overturn a state constitutional amendment).

In 1992, the voters of the State of Colorado narrowly approved an amendment to the Colorado State constitution (subsequently known as "Amendment 2") using that state's referendum process (several states permit direct amendment of their constitutions via the referendum process) during the general election. The vote in favor of adopting Amendment 2 was 53% to 47%. Amendment 2, as authoritatively construed by the Colorado Supreme Court (the highest state court within the State of Colorado), had two effects on the political process within the State of Colorado.

The first effect (the "immediate effect") that Amendment 2 had upon the political process was to invalidate all executive orders, policies, legislative enactments, ordinances, statutes, etc. at all levels of Colorado government that prohibited heterosexual people from discriminating against gay people in decisions pertaining to employment, offers of housing, and access to places of public accommodation (restaurants, hospitals, libraries, etc.). It is important, at this point, to note that gay Coloradans residing in cities such as Denver and Vail had managed, through the time-honored process of lobbying their legislative bodies, electioneering, advertising, campaigning, and advocacy, to secure limited protections in several cities such that sexual orientation could not be taken into consideration in decisions pertaining to employment, access to housing, and access to places of public accommodation. It is also critical to note that these ordinances (the Denver ordinance, for example) prohibited both heterosexual and gay Coloradans from taking sexual orientation into consideration when making decisions pertaining to employment, housing, and access to places of public accommodation). Just was it was illegal, following passage of the Denver ordinance, for heterosexual business owners in Denver to discriminate against gay employees, it was also illegal for gay business owners in Denver to discriminate against heterosexual employees. There are many gay bars throughout the United States that employ heterosexual bartenders; I lived in New York City for 20 years, and can attest to the fact that many bartenders at gay bars in Manhattan are heterosexual. Provided an employee at such an establishment is capable of serving the clientelle effectively and in a friendly manner, the sexual orientation of that employee is irrelevant and may not be taken into consideration (under both New York City's Human Rights Law and under the state Sexual Orientation Non-Discrimination Act (SONDA)) in deciding whether or not to hire a qualified applicant, or to promote a qualified applicant. This is perfectly reasonable -- the gay community is not asking for "special rights," as is all too often speciously (and incorrectly) asserted by members of the hard right. These ordinances cut both ways -- just as heterosexual owners and operators of business establishments could not, under the Denver ordinance, discriminate against gay customers and employees, so too were gay owners and operators of business establishments prohibited, under the Denver ordinance, from discriminating against heterosexual customers and employees.

Passage of Amendment 2 had an immediate and profound impact upon the workings of the democratic process within the State of Colorado. Had Amendment 2 gone into effect, what was previously a sword that cut both ways would have been converted into an ax. Amendment 2 prohibited gay Coloradans from seeking redress at any and all levels of their government (from town and city ordinances passed by town councils to statewide statutes enacted by the state legislature) from any and all forms of discrimination in these areas (discrimination in employment, housing, and access to places of public accommodation). However, heterosexual Coloradans would still have been able to derive benefits from these ordinances, statutes, executive orders, and policies. In other words, gay Coloradans would have been stripped of the protections against discrimination at the hands of heterosexuals that they had won at the ballot box within individual communities, whereas heterosexual Coloradans would still have been shielded from discrimination at the hands of gay Coloradans in these areas.

It is worth noting that cultural and social conservatives are fond of opining that decisions pertaining to the lives of the people should be made as locally as possible; conservatives generally believe that the citizens of a particular community are best suited to making decisions pertaining to the economic and social welfare of members of the community in question. Amendment 2 stood this principle upon its head by forcing the citizens of large cities (such as Denver) to abide by decisions made by citizens living in other parts of the state. Decisions that had previously been made by the people at the levels closest to those so governed were now, as a direct result of the workings of Amendment 2, subject to override by Coloradans living and working in other parts of the state. What had previously been a policy question decided by local communities with differing standards and norms (as is typical of American democracy) was now elevated to a question to be decided by all of the voters of the State of Colorado, without regard to the impact that the collective answer to this question would have on the wishes of those most closely impacted by the ordinances, statutes, and legislative enactments in question. (It is reasonable to assume that the citizens of Denver were impacted more directly and more explicitly by the Denver anti-discrimination ordinance than, for example, were the citizens of Colorado Springs, who did not have to live with, or labor under the impact of, the Denver ordinance.)

The "ultimate effect" of Amendment 2, as authoritatively construed by the Colorado Supreme Court, was more invidious. Not only did Amendment 2 repeal the operation of existing anti-discrimination statutes in such a manner as to leave these statutes incapable of protecting gay Coloradans from discrimination at the hands of heterosexual Coloradans; Amendment 2 established a permanent prohibition against the passage of any similar, or more protective measures, protecting gay Coloradans from discrimination at the hands of heterosexual Coloradans at any future point in time. In other words, gay Coloradans were identified by this measure, and were permanently prohibited from ever again receiving the benefit of any legislative enactment, policy, or executive order intended to protect gay Coloradans from discrimination at the hands of heterosexual Coloradans. Given the fact that gay Coloradans make up about 10% of the population of the State of Colorado, it is hardly necessary to point out that, even assuming the existence of a highly accepting, pro-gay electorate in the State of Colorado (an assumption which is manifestly at odds with reality, as passage of Amendment 2 itself made abundantly clear), this Amendment would never be repealed.

Back to the central question -- can a federal or state court declare a state constitutional amendment to be unconstitutional? The short answer is -- absolutely. The US Constitution sets a floor to the rights enjoyed by all of the citizens of the United States. It does not, however, set a ceiling to the rights that individual states may grant to their citizens. Many state constitutions are more generous by their terms, or as construed by state supreme courts, than is the US Constitution with respect to such issues as recognition of a fundamental right to privacy; and many state constitutions are more generous by their terms, or as construed by state supreme courts, than is the US Constitution with respect to the issue of the equal protection of the laws. For example, under its equal protection jurisprudence, the US Supreme Court has not explicitly declared that classifications on the basis of sexual orientation are, or should be deemed to be, suspect (which would force the federal courts to apply strict scrutiny to all legislation that draws classifications on the basis of sexual orientation); however, in all areas of equal protection jurisprudence other than that implicated by the right to marry, the Hawaii Supreme Court has declared that strict scrutiny must be applied to legislation that classifies on the basis of sexual orientation (see Footnote 1 of the Summary Disposition Order in _Baehr v. Miike_, No. 20371 (1999)). Therefore, in those cases where a state constitutional amendment is deemed repugnant to the provisions of the US Constitution by a state court, the state court may issue a preliminary injunction prohibiting the amendment from taking effect until the state court has had an opportunity to hear arguments relative to the constitutionality of the amendment in question at trial (during the trial, the amendment itself is placed on trial). This is exactly what happened when the District Court for the City and County of Denver (the Hon. Jeffrey H. Bayless presiding) issued a preliminary injunction prohibiting Amendment 2 from taking effect. The state appealed to the Colorado Supreme Court, which upheld the preliminary injunction and remanded the case back to the trial court with instructions to subject Amendment 2 to "strict scrutiny." The District Court, at trial, found none of the state's purported compelling state interests to be compelling save one, which was not promoted by Amendment 2 in the least restrictive manner possible. Indeed, the District Court found that the opposite of one of the state's purported compelling state interests was actually compelling. Acting on this record, the District Court issued a permanent injunction prohibiting Amendment 2 from ever taking effect. The state appealed to the Colorado Supreme Court once again, which upheld the permanent injunction. The state then perfected an appeal to the US Supreme Court, which upheld the permanent injunction in ringing tones endorsing the dignity of gay men and lesbians (_Romer v. Evans_, 517 U.S. 620 (1996)) in a case which was the harbinger of _Lawrence v. Texas_, 539 U.S. 558 (2003) (in which the Court overturned _Bowers v. Hardwick_, 478 U.S. 186 (1986), thereby declaring unconstitutional anti-gay sodomy statutes as applied to consensual, non-commercial sexual activity between same-sex and opposite-sex adults acting in private).

In the Nebraska case, plaintiffs brought an action under 42 U.S.C. section 1983 challenging the Nebraska constitutional amendment in US District Court. Although the trial judge held that the Nebraska constitutional amendment was as singularly depraved in terms of its goals as was Colorado's Amendment 2, the US Court of Appeals for the Eighth Circuit (an extremely conservative Court of Appeals) held, in an analytically impoverished and nonresponse opinion, that Colorado's Amendment 2 was much more far-reaching and destructive in terms of the distortion of the democratic process which it worked against gay men and lesbians than was the Nebraska state constitutional amendment. This writer takes issue with the analysis (or lack thereof) upon which the Eighth Circuit's reversal was premised. At the present time, the writer is unaware as to whether or not the losing party intends to appeal this decision to the full US Court of Appeals for the Eighth Circuit (en banc) or to the US Supreme Court.

The above should clarify how a state constitutional amendment can be challenged and, in some cases, be struck down on its face (Amendment 2 was struck down on its face -- a measure not undertaken lightly, since there are very few circumstances under which an appeals court will declare an enactment of the popular will to be facially unconstitutional).

Philip Chandler