U.S. District Judge Joseph Bataillon today struck down an amendment to the Nebraska constitution which prohibited any recognition of same-sex relationships. Before going further I want to emphasize that the judge did not rule on same-sex marriage, nor did he rule that same-sex couples were being unconstitutionally denied the protections of marriage. The problem with the amendment was that it prohibited same-sex couples and others who would advocate on their behalf the ability to seek these rights through the political system without amending the constitution. The situation was very similar to Colorado's Amendment 2 which was struck down by the US Supreme Court in Romer v. Evans (1996), and not surprisingly in today's opinion (pdf) Judge Bataillon made repeated reference to Romer.
The Nebraska amendment, which passed overwhelmingly in 2000, read as follows:
Only 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.
It was the second sentence that the court found troublesome. It ruled that it interfered with the first amendment right "to petition the government for a redress of grievances" (as applicable to the states via the fourteenth amendment), it violated the fourteenth amendment right to equal protection as its interference with first amendment rights was discriminatory, and finally it considered the amendment to effectively be a bill of attainder in violation of article I, section 9 of the US Constitution (I guess on the theory that it too is applied to the states via the fourteenth amendment). The court noted that the amendment did far more than define marriage. It disenfranchised same-sex couples and their allies from seeking protections for their families through normal governmental channels. The Attorney General of Nebraska had offered his opinion that any bill that would grant any right traditionally associated with marriage to couples which include same-sex couples would run afoul of the Amendment 29. As the court noted:
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. Plaintiffs assert that they seek only to advocate to members of the Unicameral for passage of legislation that would make domestic partners responsible for each others’ living expenses; allow a partner hospital visitation; provide for a partner to make decisions regarding health care, organ donations and funeral arrangements; permit bereavement leave; permit private employer benefits; allow survivorship, intestacy and elective share; and permit same-sex couples to adopt children.
It is not that Nebraska had to allow these protections, but rather that they at least had to allow people to advocate for getting these laws passed. If the state only wanted to keep the definition of marriage, they could have just had the first definition. If they were worried about the equal protection or due process clause of their constitution being used by courts to order rights or protections to same-sex couples, the amendment could have made clear that no clause of the constitution guaranteed any such rights. It is one thing to say a constitution does not guarantee certain protections, it is quite another to say it prohibits it.
Nebraska Attorney General Jon Bruning has already said he would appeal the ruling. The greatest difficulty he will have is distinguishing this case from Romer. Apparently he tried two ways to do so. One was that the amendment did not retroactively remove any protections. The main concern with Romer was that it stifled the ability to seek protections through the normal political process just as Nebraska's amendment does. The other way Bruning attempted to distinguish Romer is that it is not as broad dealing only with "marriage". The amendment, however, is quite broad in denying the ability to seek any sort of protections for same-sex couples and their families.
So some will try to use this decision to argue the necessity of some federal amendment, but this decision said nothing about prohibiting same-sex marriage. It just said everyone should be able to seek protections through their government.