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.
JK: The real purpose behind this amendment was to prevent dykes and faggots from being treated as though they were actually human beings.
In my opinion, it is childish temper tantrums like the one above, that does the most damage to your cause. I've been following this debate closely for two years now, and this is the first time i've heard the word "faggot" used anywhere. "Ignorant bigot" on the other hand...
Talk about "animus".
Posted by: Marty | May 15, 2005 at 03:36 PM
Marty, I used two purposefully offensive words among several thousand quite neutral and even-tempered ones. If this qualifies as a temper tantrum, then only a robot would never have them.
And as to animus, well, you bet. When my rights are attacked, there is only one legitimate response.
Posted by: Jason Kuznicki | May 15, 2005 at 06:00 PM
Jason, you have the same equal right to marry as anyone else in this country. Get used to being treated equally, regardless of your orientation.
Posted by: Marty | May 15, 2005 at 06:56 PM
Sorry, Marty, but I've heard that one before, and I don't find it an argument even worth rebutting anymore.
Posted by: Jason Kuznicki | May 15, 2005 at 07:49 PM
Yeah, i can't imagine why. You can't refute it. See, you aren't after equality -- you've already got that. No, you're after something "special", because you think that being gay makes you special. Sorry, but that isn't quite the same as equality now is it?
Posted by: Marty | May 15, 2005 at 08:23 PM
yes, and I'm sure your comments would have struck segregationists as true.
"You black people have equal rights.. if you are white"
twisted logic Marty, very very twisted.
Posted by: trey | May 15, 2005 at 08:37 PM
And an amendment which prohibited the celebration of Jewish holidays would, of course, not be a denial of equal protection because not only Jews, but Christians, Muslims, and everybody else would be prohbitied from celebrating them too. We would allow them all equally to celebrate Christian holidays, but those Jews shouldn't be after something "special" because they think that being Jewish makes them special.
Posted by: Galois | May 15, 2005 at 08:58 PM
trey, that's not much of an argument now is it?
galois, yours is no better.
c'mon, is this all you've got?
Posted by: Marty | May 15, 2005 at 09:09 PM
Actually, Marty, asking that two men be allowed to marry wouldn't be "special." You'd be allowed to do it, too.
Posted by: Jason Kuznicki | May 15, 2005 at 10:15 PM
So to make the field level for gay people, we have to lower the standards for everyone -- is that it?
Posted by: Marty | May 15, 2005 at 10:23 PM
You're a joke, Marty. Really.
Posted by: Jason Kuznicki | May 15, 2005 at 10:29 PM
I don’t find Marty to be a joke?
If he is a joke, then so are huge swaths of the American people. (as am I)
Believe it or not (and I know ssm-opponents can fathom it, but avoid doing so)people all over the country are protecting the foundational & beleaguered institution of marriage against would be imitators.
The equal protection argument falls flat.
Galois religious analogy is fatally flawed because the American people put special protection for religious liberties in the Constitution.
To wit – no such protections have been inserted for sexual orientation.
Nor do such argument compel our government to conflate SS relationships with the institution of marriage.
Something is being missed here. The narcissistic tendency of SSM opponents to make this argument solely about their perceived individual rights
It quite telling that Jason Kuzniki writes – “””And as to animus, well, you bet. When my rights are attacked, there is only one legitimate response”””
When to date – no such rights exist. You cant impinge on a so called “right” until you have one. You cant lose something you never had. That’s what this debate is about- should SSM – become a civil right? The people are speaking, the courts are weighing in, and SCOTUS will eventually be heard from.
The more germane argument, and the one that SSM opponents are ignoring (in favor of a self –centered reliance on plea’s for special rights) is the public policy argument against SSM. (it is nicely summarized by below)
In the words of Mary Eberstadt (I quote)
"""For many years now, and often inadvertently, secular as well as religious researchers have been amassing facts that, properly understood, bolster the case for the traditional family and against its adversaries and would-be imitators. Some of that evidence, such as the harm to children of the fatherless household, is already widely acknowledged by mainstream writers and readers. Some of it, particularly evidence pertaining to the dark side of homosexuality, remains virtually taboo. When all of it is put together, however, this evidence shows that empirical fact is on the side of the traditional family."""
This is the general thrust- take, that large segments of the American people have concerning the institution of marriage. Before SSM proponents can convince people that their agenda is worthwhile they need to persuade people that protecting traditional marriage is unnecessary. So far the arguments of Jonathan Rauch have been unpersuasive (and rarely made). More often SSM proponents rely on the courts, individual rights arguments & calling people irrational bigots.
Its simply not selling..
Posted by: Fitz | May 16, 2005 at 11:55 AM
"...to date – no such rights exist. You cant impinge on a so called 'right' until you have one. You cant lose something you never had."
So I suppose the rights of all slaves born into slavery were never violated? I imagine that all women who never had the right to vote were treated with perfect justice, because they can't lose something they didn't have? This is absurd. Merely because something is legal does not make it just or proper.
Further, government is not the source of our rights. Rights exist based on the nature of human beings themselves; governments exist to protect rights, a task that they perform only imperfectly. Part of protecting rights is to determine--hopefully with increasing accuracy--just what our rights really are. It's not an easy job.
Rights can be difficult to define, but one of them is certainly the right to form intimate and family associations, and to be free of undue attacks or burdens upon these associations. This is why governmetns recognize marriage in the first place: It's to protect the rights of individuals in this area of life.
If it looks like a "new" right is being created to recognize same-sex unions, this is only because our knowledge and understaning of rights is constantly evolving. At one time it was thought impossible that two people of the same sex might want to live their lives in an intimate union, and that they might also find themselves raising children. But now it is happening everywhere. The only question is whether the government will treat these people decently--by respecting their relationships like all others--or whether the government will use precedent as an excuse to shirk its duties.
Of course, you may wish to argue that same-sex intimate associations should not be protected, but merely gesturing at the legal status quo is no longer enough to make the case. As to your statistics, please cite sources. A great many of these are fabricated by unethical researchers hoping to make a buck by frightening people about the dangers of same-sex unions. Do note that granting legal recognition to same-sex unions will, if anything, mitigate many or even all of these drawbacks.
As to Marty being a joke--what am I supposed to think? First he says "you can't refute" that gays want special rights, not equality. Then when I ask for equality, he has the gall complain about it. You can't argue with nonsense like that.
Posted by: Jason Kuznicki | May 16, 2005 at 02:37 PM
"Before SSM proponents can convince people that their agenda is worthwhile they need to persuade people that protecting traditional marriage is unnecessary."
I also felt I should comment on this, which is quite mistaken in its reasoning.
I happen to think that protecting traditional marriage is quite necessary. I also think that the way to protect it is for the government to recognize exactly the same rights and privileges that have always been associated with traditional marriage.
The way to protect traditional marriage is not to invent a bogus threat from homosexuals. It's to fix the real threats that traditional marriage actually faces.
The way to protect traditional marriage is through proper marriage counseling, better attitudes in society toward the marriage covenant, better attitudes toward women on the part of men, and better attitudes toward men on the part of women. Churches, peers, the media, and so forth could probably do a better job in their responsibilities as well, even while it isn't clear to me what the government may or should to do help in this regard. But none of this--absolutely none of it--has anything to do with forbidding same-sex unions.
So, Fitz, don't buy the argument that supporters of same-sex marriage want traditional marriage to fail. We don't. We like traditional marriage. Many of us even have a new respect for traditional marriage based on firsthand experience of our own marriages, which, while not so traditional, still have quite important similarities with an institution that you and I both want to protect.
Posted by: Jason Kuznicki | May 16, 2005 at 02:50 PM
Enactment of SSM would constitute state recognition of a private relationship that is not marriage. It is a non-marital alternative.
When a person enters an intimate relationship with someone of the same sex, a liberty is exercised, not denied.
If the man-woman combination was always as sterile as the single-sexed combination, there would be little, if any, point to elevating the private relationship of the couple.
Suppose there was no such thing as state recognition of marriage. What good reason would prompt society, through the state, to elevate the same-sex intimate relationship?
We do live in a society where the marital status is elevated and is preferred. It is a special status. So, apart from comparing the same-sex relationship to the marital relationship, why should SSM be conferred any sort of special status? It ain't due to equality.
Posted by: F. Rottles | May 16, 2005 at 03:36 PM
F. Rottles-- Would you care to state openly whatever dark motive you're insinuating in your last sentence? Otherwise I would have a rather difficult time arguing against it.
Other than that, I'll try to answer your points. You write, "When a person enters an intimate relationship with someone of the same sex, a liberty is exercised, not denied."
This is certainly true. But when a state--as Nebraska did--prohibits gay people from making organ donation decisions for one another, a liberty is denied, not exercised. This was done for fear that somehow, in some fashion, gay organ donation declarations would in some indirect way come to compete with and therefore harm heterosexual marriage.
I'd say that that's going a bit too far.
"Suppose there was no such thing as state recognition of marriage. What good reason would prompt society, through the state, to elevate the same-sex intimate relationship?"
If there were no heterosexual marriage, then the state should create it, just as it should for same-sex marriage. Why? Because lifelong intimate partners of all types naturally desire to have certain contractual rights toward one another. They want to be able to make joint financial decisions easily and without hassle. They want joint child custody. They want naturalization rights if their partner is a foreigner. They want power of attorney, hospital visitation, inheritance rights, and so forth. Some of these rights can be obtained through other means, with difficulty and expense; others cannot be obtained at all in many cases.
This is why the state recognizes marriage at all, which would otherwise be solely a matter of individuals and faith communities. It's also why same-sex marriage should be recognized just like heterosexual marriage.
Posted by: Jason Kuznicki | May 16, 2005 at 07:40 PM
That's right Jason, of course it has nothing to do with what only men and women can do (make more men and women), it's because of our "natural instinct to enter into contracts" with each other.
Get real.
Posted by: Marty | May 16, 2005 at 07:51 PM
I consider this argument over. From first to last, Marty, you have been dishonest with everyone here. Putting words in my mouth is the last straw.
If you would even have bothered to read my post--instead of making up an argument that you preferred to attack--you would have seen that I view the government aspect of marriage as ONE part of a larger picture. The rest is provided by the individuals involved and their faith community. That's where something more than a contract comes into the picture. And it's not by instinct.
Really, your dishonesty is appalling. You should be ashamed of yourself.
Posted by: Jason Kuznicki | May 16, 2005 at 08:37 PM
Oh goodness, i think another tantrum is coming on.
Rereading your post, in which you attempt explain the institution of marriage, there's not a single mention of procreation, not a single glance at the one thing that makes same-sex relationships so darned inferior, and opposite-sex relationships so crucial to the future of mankind. It's as if you think these things are completely irrelevant.
And speaking of putting words in people's mouths, and dishonesty:
First he says "you can't refute" that gays want special rights, not equality. Then when I ask for equality, he has the gall complain about it. You can't argue with nonsense like that.
What i said was that with respect to marriage, gays ARE being treated equally (a point i defy you to refute). That's precisely the problem for you, because you insist that being gay makes you special!
Your myopia is appalling. You really should be ashamed of yourself.
Posted by: Marty | May 16, 2005 at 09:10 PM
Rereading your post, in which you attempt explain the institution of marriage, there's not a single mention of procreation, not a single glance at the one thing that makes same-sex relationships so darned inferior, and opposite-sex relationships so crucial to the future of mankind. It's as if you think these things are completely irrelevant.
I didn't attempt to explain "the institution of marriage," but merely the component of it that is offered by our government. (I notice, by the way, that you're being dishonest again, because I DID mention child custody, which comes automatically in marriage by virtue of procreation.)
The rest of marriage would take a book to explain, and it would certainly include some of the things that you mention, minus the gratuitous slur ("so darned inferior").
Childrearing, though, is only one facet, though certainly an important one, of a multifaceted institution. Infertile, chaste, and otherwise childless couples should also be included in any definition of marriage, meaning that there is no a priori reason to exclude same-sex couples merely on the basis of childrearing.
And again, I'm not asking for special treatment, just equal treatment, and a change, equally applied, to the equal treatment that is offered to all. Nothing special.
If you misunderstood this, then I am terribly sorry. But there remains NO justification for putting in quotation marks something that I never said. That's dishonesty, and again, it typifies your conduct throughout this thread.
I believe I have made my position as clear as I can make it--even making an exception for you despite your dishonesty. I consider my work to be done here, and further, I find it would be a waste of my time to discuss with you any more. It's not my practice to argue with those who deliberately fabricate quotes to support their positions, and I do hope you will refrain from this in the future.
Posted by: Jason Kuznicki | May 16, 2005 at 09:35 PM
JK: I'm not asking for special treatment, just equal treatment, and a change, equally applied, to the equal treatment that is offered to all. Nothing special.
So you want to trade one form of equal treatment for another form -- just one with a lower standard (sex doesn't matter). That makes very real sense actually, unlike the persistent dishonesty of your rhetoric -- that gays are being treated unequally because of their orientation.
And it's not that you can't meet the standard already in place -- you easily can. It's just that "you don't want to", or "don't think you should have to". You don't like the rules of the game -- even though you are perfectly capable of playing by them -- so you insist upon a "right" to change the rules for everyone. Sounds to me like you're asking for something very special indeed.
PS: i apologize for using quotations marks when summarizing the heart of your argument -- you got me. Next time i promise to use italics instead.
Posted by: Marty | May 16, 2005 at 09:47 PM
Marty: You once again go way over the line. You intentionally misrepresent others arguments as well as misquoting others. You keep challenging people to refute your patently false claim that gays are being treated equally as if you have never seen the pages of responses on this blog and others. I decide to humor you, by responding yet again, and all you can say is "trey, that's not much of an argument now is it?
galois, yours is no better". Of course, if someone says that to you, though, it must be a sign that your so-called argument is irrefutable. If you actually have something to contribute, Marty, fine. If you're just going to produce taunts and jabs and degrade others' families, please don't bother.
Jason: Some very good points about natural rights. The legal arguments are certainly there for equal rights and I will continue to make them, but sometimes it blinds me to the real issue which is that it would be unjust regardless.
Fitz: The religion analogy still stands for several reasons. First of all, Jews would not be denied the right to freely exercise religion, provided that religion were some form of Christianity, the same right that everyone else has. They just wouldn't have a special right to celebrate those Jewish holidays. Secondly, as Jason points out, the case of banning Jewish holidays would still be unjust even if the Constitution said nothing about religion. Thirdly, the Constitution says nothing about hippies and yet they are still entitled to equal protection rights. Fourthly, many Constitutions do explicitly forbid the denial of equal protection on account of sex. Finally, that you justify the inequality by stating there is no explicit protection on account of orientatin seems to be an admission that the treatment is unequal.
As for the Eberstadt quote, that is not a policy argument against same-sex marriage, it is merely an allusion to the "dark side of homosexuality" with no basis. We also saw pseudoscience in the eugenic theories with regards to notions of racial superiority. I have made plenty of policy arguments in favor of ssm on this blog, but even if I hadn't made a single one that would not change the inherent injustice of the baseless unequal treatment.
F Rottles: Your comment seems to be a bit misplaced. The Nebraska amendment would have allowed nonmarital relationships to seek all sorts of protections, provided those relationships were opposite-sex. So to say is simply a matter of preferring marriage is ridiculous. The question was why non-marital same-sex relationships should be singled out for the denial of any recognition whatsoever.
Posted by: Galois | May 16, 2005 at 11:53 PM
Q: Were the plaintiffs in this case denied a specific same-sex contract? Which one(s)?
Posted by: Marty | May 17, 2005 at 12:04 AM
What do you mean by "same-sex contract"?
Posted by: Galois | May 17, 2005 at 07:00 AM
Galois: It's certainly possible to have a situation of equality that is unjust. Your example, where even Hindus were forbidden from celebrating Jewish holidays, would be one such case. I would like to move from a situation that is equal but unjust to one group, into a situation that is equal and just for all.
Posted by: Jason Kuznicki | May 17, 2005 at 08:20 AM