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.
While I agree that it is possible to have a situation that is equal and unjust, I don't believe the example above illustrates even formal equality. First of all, it clearly targets Jews. What makes something a Jewish holiday, after all? It is by definition a holiday celebrated by Jews. If Hindus were celebrating it instead of Jews it would be a Hindu holiday. Secondly, it explicitly and directly treats Jewish holidays and other holidays as unequal.
Posted by: Galois | May 17, 2005 at 08:54 AM
Galios
I find your Religion Analogy ultimately convoluted and therefore deceptive.
Allow me to attempt to answer your charges as you laid them out
Firstly, religion is not whom one has sex with, analogies are just analogist, that’s why they ultimately fail – the comparisons strain credulity. Religion has been the basis of unjust discrimination for decades. That’s why it was protected in the first amendment and the 1957 civil rights act. Secondly as to Jason’s point: it begs the question- Is the lack of special civil rights status for homosexuals unjust? That’s the charge we are arguing – I answer in the negative. We should not give homosexuals special civil rights protection. (this brings us to the legal standard persistent & pervasive an argument for another day perhaps) Thirdly – All citizens (hippies & homosexuals alike) are accorded equal protection status. Once again you beg the question: Is the lack of special civil rights status for homosexuals unjust? Fourthly: I AM admitting that religion as compared to homosexuality is unequal- of coarse it is – one is given special protected status the other is not. (question begging again) But to say they are treated unequally is not to say that is unjust. (all inequalities are not injustices)
If you seek such protections: do it the way all the other groups have: call your legislature.
(you Galios wrote)
“””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.”””
This is the most intellectually dishonest thing you have ever wrote. What does eugenics have to do with it? How can you call it pseudoscience when I have not presented any science? Is there no dark side to homosexuality? (I have gay friends – who have “broken the code of silence”) Just because you call it “baseless” & “unequal” does not make it so. (once again question begging)
All that aside Galois: the point of my Eberstadt quote is to punctuate the overall intellectual environment that colors this debate. That environment is best summed up by “the case for the traditional family”. Not the “dark side of homosexuality”. I think you get my point. It is a simple one and goes to the heart of this debate. Whether we are arguing against illegitimacy, divorce or polygamy – the case against ssm IS the case for the traditional family. That case (for the traditional family) is one that time is bearing out. The term “would be imitators” encompasses ALL non-traditional households (including step-families) and is rich, scientifically under girded, and widely excepted by mainstream scholars. That’s the context that I was hoping to highlight with the Eberstadt quote
Posted by: | May 17, 2005 at 10:45 AM
That last post is mine...
Fitz (:
Posted by: Fitz | May 17, 2005 at 10:46 AM
Galios
Here is the original article that the quote is taken from..
Its an excellent piece that some's up the (daunting) intellectual enviroment proponents of SSM find themselves in (if they were truly honest with themselves)
http://www.firstthings.com/ftissues/ft0402/opinion/eberstadt.html
Posted by: Fitz | May 17, 2005 at 10:55 AM
The Eberstadt piece is frustrating on a number of levels. The worst part about it, though, is the conclusion that because homosexuals suffer disproportionately from a variety of problems (drug addiction, depression, suicide), it is therefore best to afflict them with even more problems, in the form of excluding their relationships from the protections given to heterosexuals'. A decent person--dare I say it, a Christian--would ask how these problems could best be ameliorated.
Posted by: Jason Kuznicki | May 17, 2005 at 01:56 PM
Galois, my comment followed Jason Kuznicki who said that strengthening traditional marriage would not be served by "foribidding same-sex union". I said that the very thing that Jason Kuznicki claims is being forbidden is actually a liberty that would still be available whether or not the Nebraska amendment stands. He has agreed on that point.
As for the Nebraska case, you made the error of taking as a given that the amendment "singled out the denial of any recognition" of "non-marital same-sex relationships". The Judge misread the law.
Civil union and domestic partnership are the terms that have become synonymous with government recognition of alternatives to marriage. Nebraska has decided to deny sanction of so-called marriage-lite. In addition, to avoid an end-run by judge-made law, the amendment stipulated "or other similar same-sex relationships". Similar to what? To civil union and domestic partnership which are denied government recognition for opposite as well as same-sex relationships.
No matter. Constitutional amendments are supposed to do some of the procedural things that the Judge found objectionable. His thought process is very hard to defend with a straight face. (Pun intended).
Jason Kuznicki, non-dykes and non-faggots are also denied government license to "marry" the same sex. There are other classes of couples who are in the same boat precisely because they are of opposite sexes. The point of marital status is that a certain type of "union" is deemed worthy of special preference and others are actively discouraged. However, same-sex union is not banned and it is not actively discouraged. It is simply not given preference in the laws of our society. The encouragement/ discouragement is left to the Churches and other nongovernmental bodies you mentioned.
You said: "Some of these rights can be obtained through other means, with difficulty and expense; others cannot be obtained at all in many cases."
The difficulty and expense might be addressed through other measures where appropriate. Which marital rights do you think should be made available to people who are not married? Which of these are not available to them "at all"?
The Nebraska amendment did not remove other means of obtaining power of attorney and hospital vistitation, for example. Existing means can be reformed without creating a marital status for non-marital relationships. If hospital policies, or insurance policies, need fixing, fix them. Don't use the tail to wag the dog.
On the other hand, I have the same complaint about addressing the tendency of the judiciary to wander out of bounds. It should be explicitly addressed along the same lines as the wording of amendments to other state constitutions, like Hawaii, or like the wording of the proposed federal amendment.
Posted by: F. Rottles | May 17, 2005 at 02:34 PM
"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."
I don't think this is correct. The court should have read the amendment in such a way as to find it constitutional. That is an established canon of construction and the expected practice. If that meant a narrow reading of it, so be it. It is irrelevant how the attorney general had interpreted it. Instead the court struck down the entire amendment, based on its unnecessarily BROAD reading. This was not correct and I believe was agenda driven.
Posted by: Hayleyanne | May 17, 2005 at 03:25 PM
F. Rottles: It was neither my error, nor Judge Bataillon's. That interpretation is not only how the amendment would be read on its face, but it is how the Attorney General (and Governor) explictly read it thereby killing all attempts to get any protections for same-sex relationships, while permitting the pursuit of them for non-mariatal opposite-sex relationships. Allowing a surviving partner of a long-term committed relationship to make post-mortem decisions regarding organ donation can harldy be considered "marriage-lite". As for full civil unions and domestic partnerships the amendment would indeed permit the adoption of them if they were restricted to opposite-sex couples. While I won't defend every part of the opinion, the main thrust that it suffers from the same deficiencies as Colorado's Amendment 2 and is thus unconstitutional. It is much more difficult to argue that Romer must be distinguished in light of the plain wording as well as how the AG and Governor have interpreted it in practice.
Jason: I agree with you on the Eberstadt piece. I hope to write a post about it in the next month. Apparently the use of contraceptives is "antitraditional" and destructive to society. As for the the higher incidence of alcoholism and suicide, it is absolutely counterproductive to prohibit marriage or in other ways treat gays and lesbians as second-class citizens. Native Americans likewise show a higher incidence of alcoholism and suicide, I would expect she wouldn't discourage Native American marriage. The Irish also show a higher incidence of alcoholism. Should we deny custody to someone who identifies as Irish?
Fitz: Religion has been the basis of unjust discrimination for decades. So has sex discrimination, especially sexual orientation discrimination. Is the lack of special civil rights status for homosexuals unjust? Well, equal civil rights status would certainly be a big improvement. Thirdly – All citizens (hippies & homosexuals alike) are accorded equal protection status. Good. When Congress amended the Food Stamp Act to deny food stamps to "households containing one or more unrelated persons", it was struck down because the Court found they were targeting hippies. Is there any doubt that the term "same-sex couples" similarly--or more so--targets gays and lesbians? I AM admitting that religion as compared to homosexuality is unequal The issue was comparing same-sex relationships to opposite-sex relationships. Are those being treated unequally? The answer is also clearly yes. If you seek such protections: do it the way all the other groups have: call your legislature. I did and they responded by passing a civil unions bill. One of the major problems in Nebraska was that same-sex couples were prohibited from seeking such protections from the legislature. Whether we are arguing against illegitimacy, divorce or polygamy – the case against ssm IS the case for the traditional family. You are clearly conflating very distinct issues. The arguments against illegitimacy, divorce, or polygamy tend to actualy support the idea of same-sex marriage One asks why is marriage better than cohabitation? Why then should same-sex coules be limited to cohabitation and not marriage? The term “would be imitators” encompasses ALL non-traditional households . This includes, accoring to Eberstadt, those households which use contraceptives. One of the many reasons I support same-sex marriage is the knowledge that people like Eberstadt and Dobson won't be content with stopping gay marriage. They will try to force everyone to conform to their ideas of what a marriage should be.
Hayleyanne: If a law (or amendment) came before a judge and there was some question about its constitutionality it would be correct for the judge to try to read it in such a way that it would be constitutional. You are correct that this is expected practice. In matters of state law (or state amendments) a federal judge (and even the Supreme Court) must defer to the state as to how it should be interpreted. So if the AG (and Governor) of the state interpret it an unconstitutional, the judge has absolutely no authority to overrule them and declare their interpretation incorrect, and based on their own interpretation the amendment was unconstitutional. I do agree that as far as the judge interpreting it so as to ban business ventures from people of the same sex, that could be argued as being too broad of a reading. If the judge had just stricken down the amendment based on that reading, that would have been wrong. But in so far as the state's own interpretation (as well as the plain wording) was so broad, the judge was absolutely correct in determining it to be unconstitutional in light of Romer. I don't know if the opinion was agenda driven. I have no reason to believe so, but in so far as the equal protection argument the decision is concerned it seems to be correct.
Posted by: Galois | May 17, 2005 at 04:01 PM
Very interesting comments.
I don’t agree that the religion analogy works. The issue here is legal acknowledgment. No one is saying that there should be a law to deny celebrations of same-sex marriages. Anyone can have a same-sex marriage ceremony and celebration, just as anyone can celebrate marrying their sibling or marrying multiple partners. What this debate is about is the legal acknowledgment of the celebration and whether it should be treated the same way (legally and civilly) as state-endorsed marriage. The religion analogy implies that the state give legal special status to Christian celebrations versus Jewish celebrations. The state actually gives no legal status to either – it allows them both.
Fitz: Whether we are arguing against illegitimacy, divorce or polygamy – the case against ssm IS the case for the traditional family.
------- I’ve heard this before and it just doesn’t work. The only way one can say this with intellectual honesty is to say that the case for traditional family includes that no relationship other than traditional family – which I’ll assume to mean man-woman-biological child -- should be legally acknowledged. That includes adoptive children by opposite sex-married couples and any instances where child is raised by only one parent for any reason – including death of spouse. The argument of ‘children do best when raised by opposite sex married couple’ as a reason to deny civil legal acknowledgment to any other type of couple is absolutely arbitrary. Where does that logic lead – should people who own guns be allowed to marry? People who smoke?
Fitz: The term “would be imitators” encompasses ALL non-traditional households (including step-families) and is rich, scientifically under girded, and widely excepted by mainstream scholars.
------- OK, so only those non-traditional households that are widely accepted by mainstream scholars should be given legal acknowledgment. As opposed to any scholars that may consider same-sex households as worthy of legal acceptance. (I guess those wouldn’t be considered mainstream).
I happen to think the SSM is not a clear-cut issue of civil rights and the denial of such. I believe marriage is currently defined as being opposite sex and allowing SSM is a significant change in that definition. That doesn’t mean the change isn’t warranted and I do think this debate is mainly about the normalizing and equalizing of same-sex relationships and homosexuality, rather than protecting the sanctity of marriage.
The other thing that gets me is that constant ‘man and women make children’ argument. Yes, I’ll grant that marriage was based on that fact. But things have changed and marriage rights are now about much more than that. We allow people who don’t even live together to get married, people who cannot and are even prevented from procreating can still marry. The truth is that the ability to procreate has never been used to deny marriage to anyone opposite sex pairing – just same-sex couples.
Posted by: Mark Miller | May 17, 2005 at 04:45 PM
Galois, do you agree with the AG's opinion?
If you do, the Judge, you, and the AG are all mistaken in your opinions.
Posted by: F. Rottles | May 17, 2005 at 04:46 PM
Mark: You are correct that the religion analogy as stated has a distinction of legal acknowledgement. There are official acknowlegement of cultural holidays and celebrations. There are parades, pageants or songs in public schools, proclamations, etc. Suppose we allowed Jewish holidays to be practiced in the privacy of one's bedroom, but prohibited any government acknowledgement of them (no suspending street cleaning, no days off of public schools or places of work, etc.) If the religious aspect bothers you, consider banning Mexican holidays instead (but would still permit Irish, Canadian, etc.) The question remains is that equal treatment, since nobody is allowed to have their Mexican holidays acknowledged?
F Rottles: I do, but that is irrelevant. I don't get to decide how to interpret the Nebraska Constitution, nor does a federal judge, nor do you.
Posted by: Galois | May 17, 2005 at 05:44 PM
Q: Were the plaintiffs in this case denied a specific same-sex contract? Which one(s)?
A: What do you mean by "same-sex contract"?
I'm under the impression that the Nebraska amendment was struck (in part) because it denies two members of the same-sex from entering into certain contracts. Jason mentions "organ donation contracts" (sorry, make that organ donation contracts).
My question is, what contracts were sought (and subsequently denied) by the plaintiffs? Contracts that, now that the Amendment is struck, plaintiffs will presumably be granted.
It's one thing for someone to venture an 'opinion' that organ donation (among other examples cited elsewhere) would be denied under the Amendment -- it's another for someone to actually be denied. Where was the plaintiff's cause of action?
Posted by: Marty | May 17, 2005 at 06:09 PM
Mark, "things have changed..." but not THAT much. There is still no other way to beget children, but by a man and a woman. Even so-called "gay parents" know that, despite their hysterical attempts to deny the relevance of it all.
If "things have changed" that much, then you might as well admit to enjoying the current devaluation of Marriage -- and to your hope that it is devalued still more.
Pretty soon now, marriage wont be worth the paper it's written on, for gays and straights alike.
Posted by: Marty | May 17, 2005 at 06:15 PM
Jason Kuznicki.. said that strengthening traditional marriage would not be served by "foribidding same-sex union". I said that the very thing that Jason Kuznicki claims is being forbidden is actually a liberty that would still be available whether or not the Nebraska amendment stands. He has agreed on that point.
This is true, but rather disingenuous. The VERY SAME religious conservatives who oppose same-sex civil marriage were also the ones most active in supporting anti-sodomy laws, and if we gave them but half a chance, they would be agitating for the reinstatement of these laws. So yes, same-sex intimate unions are still possible in Nebraska, but with no thanks at all to the people trying hardest to "protect" traditional marriage. Their hidden agenda is punishment, and it's almost pathetic how obvious the agenda really is.
The trouble with unprotected intimate unions is that they are subject over the long term to many insults and abuses, particularly from the state. The reason we have marriage as a governmental institution at all is to prevent these abuses where possible. (The reasons we have marriage as a spiritual and procreative institution are related, but distinct.)
Failure of the government to respect the long-term intimate unions of all citizens represents an attack on the freedoms of those neglected citizens. Not only does the government have an obligation to refrain from punishing intimate unions, but so too, when a union becomes serious enough, it passes into the sphere of things that we have created the government to protect in the first place. It becomes not merely a cheap pleasure or a passing fancy, but a real and permanent part of individual lives and individual pursuits of happiness. Governments are instituted for exactly these reasons.
Just as it does not grant any special rights to permit homosexuals to speak or publish, so too, it grants nothing outside the scope of government for government to protect long-term same-sex intimate unions. Same-sex partners cannot now obtain the right, enjoyed by straight people, to naturalization for a committed partner. Even Massachusetts marriages don't suffice, as immigration is handled solely at the federal level.
A friend of mine is facing exactly this problem right now, and it seems likely that his partner of many years will be deported soon.
The rights that we cannot get by any means at all often include joint child custody for same-sex partners, immunity from testifying against one's spouse, the right to sue for wrongful death, and the right to receive social security benefits in the event of a partner's death or injury. There are many more, but these are some of the most injurious.
Posted by: Jason Kuznicki | May 17, 2005 at 07:16 PM
Failure of the government to respect the long-term intimate unions of all citizens represents an attack on the freedoms of those neglected citizens.
Failure to respect represents an attack? What ever happened to benign neglect? Or live and let live? Maintaining the status quote (since, like forever man) is only an attack in your imagination. It is your side doing the attacking around here, and acting incredulous that anyone would have the gall to fight back.
And you certainly cannot reconcile it with this:
The reason we have marriage as a governmental institution at all is to prevent these abuses where possible.
So the government instituted marriage as a means of preventing government abuse of intimate unions between men and women? And not instituting it would have represented just such an abuse? That's a neat little circular argument, but it has no basis in reality.
"The Goverment" (that is, we the people) can draw our own lines and encourage certain intimate relationships, discourage others, and turn a blind eye towards others besides. You act as if we the people have no right whatsoever to discriminate between those relationships we find beneficial, those we find harmful, and those we merely tolerate. Do we not have that right?
Of course we do have that right when it comes to the intimate unions of bigamists, polygamists, pedophiles, among others. And we the people have this right too.
Posted by: Marty | May 17, 2005 at 07:50 PM
It's one thing for someone to venture an 'opinion' that organ donation (among other examples cited elsewhere) would be denied under the Amendment -- it's another for someone to actually be denied. Where was the plaintiff's cause of action?
You should read the complaint. The following is taken directly from the decision:
One couple upon moving to Nebraska from Vermont with their child wrote to the Governor with concerns about health care, adoption, and inheritance issues. He responded:
And the state even said in their own brief
The plaintiffs do not need to show that they would have achieved any of their legislative goals anytime soon, just that they were unjustifiably put on an unequal footing in trying to achieve them. As the US Supreme Court noted in Northeaster Florida
Posted by: Galois | May 17, 2005 at 10:36 PM
Thanks for the background, there's plenty here to digest. (are you sure you're a mathmetician?). I see several potential problems, not least of which is in the first part of the first quote:
That bill would have provided the domestic partner ...
Posted by: Marty | May 17, 2005 at 11:34 PM
Galois, you said: "I don't get to decide how to interpret the Nebraska Constitution, nor does a federal judge, nor do you."
I am confident that opinions such as mine are relevant because they've been reached in accord with the basic principles of interpreting statutory and constitutional texts in our legal system. Eugene Volokh fairly summarized the relevant principles at the very link you provided in your post. And although he generally supports enactment of SSM, his view of the judge's handiwork is not far from my own.
If you are saying that the AG, and the AG alone, gets to dictate how the amendment to the Nebraska Constitution is to be read in federal court, you are barking up the wrong sophistry.
Jason Kuznicki, you said: "So yes, same-sex intimate unions are still possible in Nebraska, but with no thanks at all to the people trying hardest to "protect" traditional marriage. Their hidden agenda is punishment, and it's almost pathetic how obvious the agenda really is."
Jason, in your previous comments you claimed yourself as among those trying hard to protect traditional marriage. Have you now retracted that overt claim?
Posted by: F. Rottles | May 18, 2005 at 03:17 AM
Galois: I don't think the court was bound by the attorney general opinion in terms of its interpretation. I will have to check into that. IMO the court should have read the amendment narrowly and struck down only that portion that was too overbroad in its reach. The AG opinion was relevant of course, but it was the court's place to advise of the correct meaning. It did no need to strike it down entirely.
More generally, I want to comment that I think SSM proponents lose sight of the forest for the trees when they say that marriage is not linked with family and children. Sure, some couples choose not to have children, but the expectation is still there-- not legally-- but in the form of societal pressure. SSM changes fundamentally the definition of marriage. Historically, marriage has ALWAYS been between a man and a woman. Even in polygamous relationships, there is always the two opposite sexes. Homosexual "marriage" has never been recognized. Homosexual relationships have been recognized in ancient greece etc, but never the status of marriage. SSM proponents try to draw the analogy to mixed race marriages, but this is flawed. A mixed race marriage is still marriage as it is understood -- a man and a woman. Moreover, laws prohibiting mixed race, or mixed religion, or mixed anything have existed--yes, But there has never been a UNIVERSAL prohibition on such marriages in the way that there exists a universal prohibition of SSM. Why? Because SSM radically changes marriage as we know it. This kind of cultural change must come from the people and not from the courts. I think a good compromise position is civil unions. These will provide ss couples with the protections of marriage, but the traditional concept of marriage is allowed to remain in tact. If SS couples do not accept this, that tells me that they want more than just these protections and instead seek to impose on society an entirely different and radical definion of marriage itself.
Posted by: Hayleyanne | May 18, 2005 at 08:24 AM
Galois, I still don’t think the other analogies work. Take Kwanza (sp?) for example. To my knowledge, there is no official holiday for that. No day off work or school unlike there is for Christmas. Is this an example of denial of equal treatment? IMO, it is not. I guess I don’t feel there is a legal right to have one’s choices and celebrations of such acknowledged. That does not mean that Kwanza or Hanukkah isn’t as legitimate as Christmas. That is a personal decision. But, to me, the fact that US mail gets delivered during Hanukkah but does not on Christmas is not an example of unequal treatment.
Marty, when I said that ‘things have changed’ I meant that in the context of biological parenthood being the standard of marriage. Again, your point seems to be the deny legitimization of gay parents and trying to use the argument that they are not deserving since gay parents cannot be the biological parents of children. Of course, you aren’t saying the same thing about other parent-children relationships where there is no biological link -- just same sex couples.
As far as devaluing marriage, it is your opinion that same-sex marriage devalues marriage for all. But your opinion is based on your view that homosexuality and thus, same-sex couples are immoral. And that is the same logic used by those who were against allowing separate races to marry. I’m not saying they are the same – same-sex couples, interracial couples. I think that same-sex marriage is a much more significant change than the interracial ban. But to say that SSM devalues marriage refers to your moral opinion. There are some that feel SSM increases the value of marriage – and obviously those that say that have a different moral opinion of homosexuality. My point ? Your view is based on morality, not the ability to procreate.
I’m probably closest to the view of Haleyanne – at least on her most recent comment. Except when she wrote: “Sure, some couples choose not to have children, but the expectation is still there-- not legally-- but in the form of societal pressure.”
------- I think there is some societal pressure and even expectation for couples to have children. In any case, whether there is a societal expectation or not should have no bearing on legal acknowledgment. Also, we do not give special statuses to biological parents versus adoptive parents. Legally speaking, both cases refer to parents and dependant children. So why can’t this be the case in civil marriage – regardless of ability to procreate?
Posted by: Mark Miller | May 18, 2005 at 10:09 AM
Jason Kuznicki, you said: "So yes, same-sex intimate unions are still possible in Nebraska, but with no thanks at all to the people trying hardest to "protect" traditional marriage. Their hidden agenda is punishment, and it's almost pathetic how obvious the agenda really is."
Jason, in your previous comments you claimed yourself as among those trying hard to protect traditional marriage. Have you now retracted that overt claim?
I do think you are twisting my words here. The scare quotes around the word protect should have been an obvious clue, but if they were not, I will spell it out more plainly.
I protect and support traditional marriage by encouraging it among my friends, by offering moral support to those who are married, and by writing about it in forums like these.
Others "protect" and "support" traditional marriage by claiming that homosexuals are out to destroy civilization.
I think the difference is clear.
Posted by: Jason Kuznicki | May 18, 2005 at 10:36 AM
Hayleyanne-- I agree entirely with your view of the ruling. The court should have struck down the second provision as overly broad and vague, while leaving the first. I find it regrettable, but fully within U.S. constitutional law.
Does same-sex marriage change the definition of marriage? Yes, of course it does. But I disagree that the change is "fundamental." Only a few will ever take advantage of it, and heterosexual marriage will always remain the norm. Humans are predominantly heterosexual, and no law could ever hope to change it--certainly not this one.
The real question is not whether the proposed change has ever been seen before, however. The real question is whether that change gives equal justice to all.
In that light, I'd like to propose to you one solution I have often supported in the past: Let the government stop issuing "marriages" at all. From here on out, marriage will refer to a religious and cultural practice that is entirely private, between the two individuals, their community, and God. Let the government issue civil unions to everyone, possibly with a variety of elective responsibilities and rights. But make it clear that the people of the community--and not the government--is really in charge of marriage.
Under this system, I would be free to call myself "married" to my same-sex partner, wile you would be free to deny it. Some churches would recognize my union; others would not. The government might issue certain contractual assurances, but these would offer no seal of approval whatsoever for our status--or for anyone else's.
What do you think?
Posted by: Jason Kuznicki | May 18, 2005 at 10:48 AM
Jason-- I actually kind of like that idea. Everyone can have a civil union regardless of whether it is male/female or same sex. As long as the courts would not force polygamy in civil unions, I think this might be the best solution. That way, marriage can remain in tact as a traditional union and same sex couples can have whatever protections they need. I think this would also allow society to maintain the message that children need moms and dads. And as we learn more about the effects on children of being raised by same sex couples, some religious institutions may open up marriage to same sex couples as well.
Posted by: Hayleyanne | May 18, 2005 at 11:02 AM
F Rottles: One question the court had to consider was whether this amendment was whether the amendment was intended to deny any legal recognition to same-sex couples. It was an easy consdieration. There was evidence that the answer was yes in statement's made by those leading the drive to put the initiative in the ballot. There was evidence in the AG's opinion which must be given great weight. There was evidence in the Governor's response. More than all that, this claim was stipulated by the defense! I cannot blame a judge for believing the amendment did what the state said it did.
Hayleyanne: The court actually dealt with the issue of whether it could just strike down the second part which was overly broad. Neither side argued for or briefed the issue of severability, but the court noted in footnote 14 (internal cites omitted):
Mark: Actually, not celebrating Kwanzaa is unequal, but not unjustified. The state cannot celebrate every holiday and so must make decisions about which holidays to celebrate. Because Christmas is celebrated by such a vast majority of the populace, it is perfectly reasonable for the government to observe it. But that's not the issue we have here. We must consider what would happen if the state passed a constitutional amendment expressly prohibiting the state from acknowledging Kwanzaa in any manner or any holiday by any name which focuses on traditional African values of family, community, responsibility, commerce, and/or self-improvement. The amendment's promoters might argue it is needed to protect Christmas and make it clear that Kwanzaa is inferior to Christmas. They probably call it the Christmas Protection Amendment. Note that Kwanzaa is not a religious holiday, and as far as the courts are cocerned neither is Christmas. Now is this equal? Everyone is equally permitted from having their celebration of Christmas, Hanukkah, or any winter solstice holiday--provided it is not Kwanzaa and says nothing about traditional African values--acknowledged. And everyone is equally prohibited from having Kwanzaa acknowledged. Can you honsetly tell me those wishing to petititon their legislature to acknowledge Kwanzaa are asking for "special rights"?
Posted by: Galois | May 18, 2005 at 11:13 AM
Galois,
I think we're talking past each other.
My comment on the analogy was based on the denial of the civil rights issue - that denying legalized SSM is not equivalent to denying the right to celebrate a holiday.
In any case, I'll address the constitutional amendment issue. I agree that an amendment saying no law could be passed to recognize Kwanzaa would be very unjust. Not necessarily unconstitional but IMO - clearly unjust. I definitely agree with your sentiment of the 'Christmas Protection Amendment' name. But it does sound better than the 'Stigmatize Gays Amendment', which is the real agenda.
But my point is that, as you said, the state can't and doesn't need to recognize all relationships. And the reasoning for some of court decisions denying SSM is unconstitutional can be applied to any type of relationship. To me, the issue is a moral one. I happen to feel that homosexuality should be legitimized/normalized but polygamy and incest should not. But I feel those beliefs should be codified via the legislative process rather than through the judiciary.
Regarding the decision in question, I agree with those that it would have been most appropriate that the judge strike down the second part. I disagree with the first part and as a voter, would have voted against it (and did in my State). But I'm not sure I see where it was unconstitutional.
Posted by: Mark Miller | May 18, 2005 at 11:54 AM