In November 2000, Nebraska voters passed by a large majority a constitutional amendment, codified as Article I, § 29 of the Nebraska Constitution, providing:
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.
- Eighth Circuit of Appeals Ruling
An attempt, successful below, was made to attack this with a Romer claim in which the Supremes held that a Colorado constitutional amendment “withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.” It was perhaps the true beginning of the Court's recognition that homosexuals have some basic right to equal protection. Since the amendment broadly blocked protection from homosexuals/bisexuals, even as a status, it was unclear how the Court would rule in a narrower case. Or, when one particular area of discrimination was involved, such as sexual behavior.
This state constitutional amendment falls somewhere in the center. Though the federal court of appeals focused on "marriage" in its short opinion (fifteen pages), the wording is telling: it guards against a "similar same-sex relationship," including the civil unions of Vermont. And, more ... the potential breadth of this unnecessary slap against same sex couples is truly remarkable. For instance, a favoring of "domestic partnerships" in public hospitals in local Nebraska areas is banned. Where is the "rational relationship to legitimate state interests" there? Again, the myopic emphasis on marriage underlines the animus shown here ... including by the appellate court. The district court apparently was wearing its bifocals:
Notwithstanding policies preferring marriage, there are or may be legitimate reasons, consistent with the goals of promoting stable family relationships and protecting children, for extending some rights or obligations traditionally linked to marriage to other relationships.*
The court of appeals opinion uses the usual tropes. It cites Scalia's dissent in Romer to suggest a more narrower view of the majority's opinion. We have a 1878 ruling speaking of the "absolute right" of states to classify in marriage, which is surely not good law after Loving (and beyond). The Turner ruling underlining those unable to conceive (in prison) still have a fundamental right to marry was conveniently ignored so the "rational basis" of marriage seems to boil down to the ability to "encourage procreation to take place within the socially recognized unit that is best situated for raising children." No surprisingly, the recent NY Court of Appeals ruling with its "responsible procreation" theory was cited. All the gay families hurt (what about the children, indeed) were not mentioned. Animus writ large.
I think the matter at hand involve fundamental rights and homosexuals should be a protected class; either way provides the path to heightened scrutiny. Still, when "domestic partnerships" are not recognized across the board, I really do not see where "the question is at least debatable" test is met. Keeping local areas from allowing such relationships to be recognized in various respects furthers "responsible procreation" how? The matter was not raised by the plaintiffs, but this also clearly has associational implications. And, likely other fundamental rights.** As Romer says: "The breadth of the Amendment is so far removed from these particular justifications that we [should] find it impossible to credit them."
[Along with an artificially narrow understanding of "marriage," avoiding these fundamental rights allows one to use the "rational basis" test. Such a test allows inexact legislation, including some that is simply a bad idea. A good way to avoid declaring something unconstitutional. Helps to put a thumb on the scales too, eh? BTW, it does hurt the avoidance ballet when "domestic partnerships" etc. are involved. Not like we have centuries of those to appeal to.]
The ruling cites a discussion of same sex marriage by Judge Posner, who in part noted that judges "will have to go beyond the technical legal materials of decision and consider moral, political, empirical, prudential, and institutional issues, including the public acceptability of a decision recognizing the new right." Since same sex marriage alone is not being considered here, I do question how "new" the rights are. All the same, the point is well taken as a general matter, which is why I think it appropriate to start with "civil unions," surely if only court review is involved [fight for marriage equality in legislatures, accept civil unions in court disputes].
But, this ruling offered a chance to attack the issue on narrower grounds. This was not only a "gay marriage" lawsuit. I assume, perhaps, it could be spun that way, but that is a separate issue. It covers much broader ground, preventing local options that honor same sex relationships in even limited contexts. Like a federal appellate court that upheld a blanket ban on homosexuals adopting (it is rare for a state to be that blatant), though even clearly the case here, this is a step too far. It simply put is illegitimate discrimination.
Romer also covered an amendment covering
all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment. ... It identifies persons by a single trait and then denies them protection across the board. ... It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.
But, for today, a city in Nebraska could not recognize a domestic partnership for the sake of making emergency medical decisions or even "family days" at the local park to the degree heterosexual "marriages" are so honored. This is irrational ... to put it nicely.
---
* The "may" specifically concerns the amendment barring the possibility, without amending the state constitution again, of even obtaining local legislation securing limited protections to same sex couples. This ties things back to Romer.
** As noted by the district judge:
First Amendment and Equal Protection issues are closely intertwined. Because intrusions on First Amendment rights are often accompanied by an invidious or irrational animus against a certain group, a First Amendment infringement can also be analyzed as the deprivation of a fundamental interest under the Equal Protection Clause when accompanied by proof of such discriminatory animus.
The appellate court dismissed this core portion of the lower court's ruling in about a half page. Again, suggesting it is all about "marriage" (and marriage is all about procreation / it's rational to burden same sex couples to promote this end) helped cut short the opinion.