On Friday, because of time constraints, I gave a brief overview of the recent decision in CFEP v. Bruning (pdf) which struck down a Nebraska State Amendment prohibiting any recognition of same-sex relationships. With a little more time today, I thought I would present some of my own views on the decision. I will start with the least defensible aspects of the decision and proceed to the most defensible. In short, I believe that everything the court found wrong is most properly put into the consideration of the equal protection violation, and it is on that violation that the opinion is most justified by logic and precedent.
The least defensible part of the opinion was ruling that the amendment infringed plaintiffs first amendment right to petition for redress of grievances. For one thing, as far as I can tell this argument was never raised by the plaintiffs directly in their complaint (pdf) or elsewhere. In so far as the plaintiffs complained about their inability to seek protections from the Unicameral or the governor the complaint was an equal protection one. That is gays and lesbians were unfairly being singled out in their ability to seek protections for their families. An opposite-sex couple could seek protections for their non-marital relationship, but a same-sex couple could not seek the same protections. As many people have noted any constitutional provision makes it more difficult to advocate for certain legislation, it only seems troublesome if it targets particular groups like the amendment before the court here. The case that seems most on point to the violation here was Romer v. Evans which was decided on equal protection grounds, and not first amendment grounds. At best this section of the opinion should be understood as the court emphasizing the significance of the impact of the amendment on same-sex couples and their families. Thus the court wrote:
The elucidation of the constitutional deprivation at issue is preliminary to any finding that Section 29 violates either the Equal Protection Clause or a finding that Section 29 amounts to an unconstitutional bill of attainder and is, thus, properly before the court.
Unlike most of the cases the court relied upon in this section, though, the amendment did not prohibit the plaintiffs free speech rights, and it did not prohibit their right to stage rallies or form organizations to lobby for gay rights. I disagree, then, with the court that absent any violation of equal protection the amendment needs extra justification. The court should have, as the Supreme Court did with Romer, focused on this directly in the context of the equal protection violation.
The bill of attainder violation I think caught most people by surprise, but at least this was raised by the plaintiffs in their complaint. The idea is that the purpose of the amendment was punitive in nature. It sought to punish gays and lesbians by denying any recognition to their most important relationships. There is certainly evidence for this, both on the face of the amendment itself which singled out same-sex relationships for the denial of any recognition as well as contextual evidence in the passage of the amendment and even in its defense before the court. As the complaint notes:
[Guyla] Mills, [who led the petition drive to place Initiative 416 on the ballot and chaired the Defense of Marriage Amendment Committee in support of Section 29, publicly] explained that the second sentence of Section 29 was necessary “to send a message to society about homosexuality. . . that homosexuality and heterosexuality are not morally equivalent.” Mills stated that Section 29 was based on the prevailing morals of society and explained the importance of sending a strong message about homosexuality, “that homosexuality is a sin and should not be sanctioned even by ‘quasimarriage’ unions such as domestic partnerships and civil unions.”
The State even acknowledged in its defense (pdf) of the amendment that "Plaintiffs started the political fight that resulted in the adoption of Section 29." Throughout there is a notion that the plaintiffs brought it upon themselves and this amendment was retribution for their advocacy of marriage rights. "They had it coming" is not a legitimate legislative purpose for an amendment, but rather an indication that it is intended to punish a certain group (for which it is believed the punishment is deserved).
Still, it is hard to see why it is necessary to frame things in terms of the Bill of Attainder clause. If the purpose of the amendment was punitive, then it would violate the equal protection clause as in Romer, Moreno, or City of Cleburne. Likewise it is hard to see how it could survive an equal protection claim and still be considered a bill of attainder. In truth, it seems to me that any bill of attainder would be a violation of equal protection and/or due process, and thus the clause may be somewhat redundant this days. Still, this section seems unnecessary in light of Romer.
This brings us to the equal protection violation. As noted above, evidence from both the text of the amendment itself and the context in which it was passed, interpreted, and defended, that "the decisionmaker selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group" (Personnel Adm'r v. Feeney (1979)). As in Romer the amendment is remarkably unusual in its selection of a narrow group for such a broad impact. No other state in passing such a constitutional amendment struck so broadly in the denial of recognition of specifically same-sex couples. How is that the state finds it necessary to prevent same-sex domestic partnerships, but not opposite-sex domestic partnerships? When the Unicameral was considering allowing evidence of surviving partners of long-term committed relationships to make decisions regarding anatomical donations, the Attorney General delivered an opinion that this would violate amendment 29 because it would include same-sex couples. If the proposal had only included non-marital heterosexual relationships the legislation would have been fine. How in the world is this supposed to support heterosexual marriage? So I cannot agree with Eugene Volokh that this law is a much better fit than Romer. Nor do I agree with him that it necessarily follows from the court's reasoning that same-sex marriages must be recognized. While I fail to see how restricting marriage to heterosexual couples advances any interest, the court was not considering that here. One could suppose that the government's interest in marriage somehow requires that the definition be gendered, without necessarily believing that it must therefore be necessary to deny any recognition to same-sex relationships, while permitting the recognition of opposite-sex cohabitation.
Volokh also notes:
Finally, note that the standard canon of interpreting statutes is that they must be interpreted to avoid constitutional problems, when such an interpretation is consistent with the language. For instance, if the court fears that reading the amendment broadly — for instance, covering co-tenancy contracts, or co-ownership arrangements, among romantically linked same-sex couples — would violate the Equal Protection Clause under Romer, then the court should read the amendment (quite plausibly) as not being that broad, and only covering marriages, statutory civil unions, or statutory domestic partnerships, not centuries-old generally applicable rules of contract and property law.
There was, however, evidence that the State had already been reading the amendment so broadly that it was unconstitutional. Even supposing for a moment that there was a way to narrowly read the second sentence of the amendment so that it would be constitutional, what is the court to do to cure the unconstitutional implementation of it? It cannot dictate to all Nebraska officials how they must interpret their own constitution, and even if it could, the court could not rule in advance on the constitutionality of unnumbered possible acts not before it. The only alternative I could see is for the court to strike down the amendment and leave it to Nebraskans to pass a narrower amendment if they so wish. This is, of course, not to mention the evidence that the entire amendment is tainted with the invidious motives noted above. As Jason Kuznicki writes:
But let's be frank about all of this. The real goal of the voters here was never to encourage heterosexual marriage. Nor was it even to discourage homosexual marriage. The real purpose behind this amendment was to prevent dykes and faggots from being treated as though they were actually human beings. Now we can dream up all sorts of potential reasons that might justify the amendment, and, through some wondrous instinct toward self-preservation, the law itself even requires us to do so when it happens to fail. But we know the real reason behind the amendment, and it should be abundantly clear to everyone. At times it was even clear to Judge Bataillon, as when he cited Romer v Evans, a case that struck down an anti-gay Colorado amendment after finding behind it no greater rationale than "animus." Laws like these are not merely illegitimate, in the sense of lacking a genuine aim. They are downright oppressive.