Gay marriage decision in Nebraska
A district court judge in Nebraska has struck down the state’s ban on same-sex marriage. The full opinion is here. Although the court bases its opinion on a number of theories (see below), the most plausible one is Equal Protection. The Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly situated should be treated alike.” Generally, extensive deference is granted to the legislature due to the practical need to draw distinctions among groups. Basing its holding on the seminal Equal Protection case for homosexuals, Romer v. Evans (1996), the Nebraska court erroneously concluded that the ban does not have a rational relationship to a legitimate state interest, but it is unlikely higher courts will accept this ruling.
In Romer, a Colorado Constitutional amendment prohibiting governmental protection of homosexual persons was “inexplicable by anything but animus” because the amendment exceeded its rationale of “conserving resources to fight discrimination against other groups.” Applying a rational basis review, the Court found that the amendment inflicts “immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it.” For Nebraska’s same-sex marriage ban the court also claimed no “rational relationship to a legitimate state interest.”
This “rational basis review” is not a demanding test at all, and it’s a far cry from the strict scrutiny that might allow a court to overturn the ban. As the Supreme Court has repeatedly ruled, “Courts are compelled under a rational basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.” There is certainly an imperfect fit between means and ends with most homosexual marriage bans, but the deference afforded to legislatures requires that courts accept this imperfect fit. The fit is certainly better than the constitutional amendment presented in Romer; any comparison is weak. The Supreme Court will almost certainly hold that promoting opposite-sex relationships is legitimate, and the ban is rationally related to that interest. Reasonable people – such as other ITA authors – will disagree over whether the ban is wise or just, but it is hard to argue the law is not rationally related to that purpose.
Jonathan Bunch has a nice, succinct overview of the EP argument and notes these kind of rulings may have a negative impact on public opinion from the homosexual agenda’s perspective. Meanwhile Eugene Volokh does us all a favor by dissecting each and every argument the court used. Some are really quite ridiculous and they discredit the one argument that is at least remotely plausible – Equal Protection. If the higher courts accept the district court’s ruling it will be on those grounds, but as Bunch, Volokh, and yours truly suggest, it is unlikely any of them will survive.
16 Responses to “Gay marriage decision in Nebraska”
This is certainly a very odd decision by Judge Bataillon (a Clinton appointee). As I read it, it appears his concern is that those supportive of state recognition of same-sex relationships cannot use the legislative process to gain that recognition, and it is to the closing of the legislative process that he objects. But is it not the case that amendment of the Nebraska constitution is an available option? Why is the legislative process constitutionally privileged over a plebiscite? I just don’t understand the reasoning.
This statute is incredibly broad and invasive, stripping same-sex relationships of virtually all possible contractual/social vailidity.
It reads: “The uniting of two persons of the same
sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be recognized in Nebraska.”
The law doesn’t regulate same-sex relationships in any rational way: it essentially says they will not “be recognized” by the law. That’s not the same as regulating them. It strips them of their status as families. If anything is “inexplicable by anything but animus,” it’s this sort of invidiousness.
You could easily quote it as saying “The uniting of two persons … in a … same-sex relationship shall not be recognized in Nebraska.”
In that, I think it does fall under Roemer — there’s no purpose to this statute other than to destroy same-sex relationships altogether.
This statute is thus devastating to a whole bunch of families out there — same sex families. All the law does, it’s only purpose, is take all political power from same-sex relationships as *family units*.
My question is this:
If Tom Delay were to come out and call this decision ‘outrageous’, would that constitute another unwarranted attack on the judiciary?
Doh, now I see that this ban was actually a Nebraska constitutional amendment, not just a statute. Brilliant. Are there any other sorts of “relationships” denied recognition by constitutions anywhere? What kind of a constitution tells people what relationships will be “recognized” forevermore?
I have not yet read the decision, but I will do so this afternoon. My question right now is about the following:
The Supreme Court will almost certainly hold that promoting opposite-sex relationships is legitimate, and the ban is rationally related to that interest. Reasonable people – such as other ITA authors – will disagree over whether the ban is wise or just, but it is hard to argue the law is not rationally related to that purpose.
Suppose I said that I could find no rational relation to the goal at hand: I do not believe that there is even a marginal correlation between prohibiting same-sex relationships and encouraging opposite-sex ones. The one will not lead to the other.
If I believe this (and I do), would I as a judge be forced to strike down this law on a rational basis review? Or would I have to conclude that the legislature did indeed find a rational basis, albeit one that I do not see?
If it’s the former, then rational basis review can be used to strike down anything, theoretically. If it’s the latter, then rational basis review can do nothing at all. What am I missing?
Suppose I said that I could find no rational relation to the goal at hand: I do not believe that there is even a marginal correlation between prohibiting same-sex relationships and encouraging opposite-sex ones. The one will not lead to the other.
I’m not so sure that accurately reflects the complete aims of the amendment. I think it is to both encourage opposite-sex marriages and to discourage same-sex ones. Many of the state legislatures clearly see a harm or negative resulting from same-sex marriages, and the amendment aims prevents them.
“I think it is to both encourage opposite-sex marriages and to discourage same-sex ones. Many of the state legislatures clearly see a harm or negative resulting from same-sex marriages, and the amendment aims prevents them.”
A friend of mine learned recently that her husband was gay. She’d married him when they were high-school sweethearts, and then spent her 20s in a distant, virtually sexless relationship. She assumed all marriages turned into that after the honeymoon phase. Finally, after eight years, he confessed that he was gay, and had no interest in her.
Nebraska has made encouraging such relationships to be permanent, lifelong ones a constitutional policy goal. And that’s supposed to be rational?
Josh wrote:
I’m with Jason on this one. I can see an irrational relationship between “promoting opposite-sex relationships” and banning same-sex relationships, but not a rational one. I have yet to hear an argument for why banning same sex relationships will encourage opposite sex relationships that is even coherent, much less rational. The only types of opposite sex relationships it might possibly encourage are the type that any sane person would want to decrease, which are those relationships where a gay person pretends to be straight to hide their homosexuality. Surely no one wants to promote more of those relationships, right?
By the way, this is not a defense of the ruling, which I have not read. I’m merely pointing out that if the “rational basis” test can be met by any claimed rationale, even an obviously irrational one, then it is absolutely pointless to have such a test at all. The only function of such a test is to declare a law beyond the reach of judicial review.
First, the sentence cited is a prediction and I think that given the makeup of this Court that is likely to be true.
Second, once again, I think its more accurate to frame the amendment as attempting to prevent same-sex marriages, and the amendemnt is certainly rationally related to accomplishing that purpose. I don’t think the rational relationship should be the focus of this debate at all. There should be little doubt that the amendment is rationally related to preventing same-sex marriages – it explicitly bans them.
Instead, the debate should be about whether banning same-sex marriages is a “legitimate state interest.” That’s the central issue and that’s where the real debate lies.
Josh wrote:
It seems to me this is circular. The law that bans same sex marriages is justified on the basis of a “legitimate state interest” in banning same sex marriages. It seems to me that there must be another level to the argument – why is it a legitimate state interest to ban same sex marriages? What legitimate state interest is served by banning same sex marriages? I’ve heard lots of different attempts to build an argument for this, but none that stands up to scrutiny. The usual argument is the one discussed above – that marriage is a wonderful thing, vital to society, and therefore to “change the definition” somehow imperils marriage and therefore same sex marriages should not be allowed. But as I stated above, there is no rationality to this rational basis. No one can come up with even a minimally plausible link between allowing same sex marriages and damaging opposite sex marriages. I would argue that there is no justification here regardless of what standard one uses to evaluate the law. The alleged “rational basis” is quite irrational, and there is no logical argument for why same sex marriages will damage any legitimate, much less compelling, state interest. I agree with you on what the Supreme Court will likely do, but I’m more interested in what they should do.
It seems to me that there must be another level to the argument – why is it a legitimate state interest to ban same sex marriages? What legitimate state interest is served by banning same sex marriages?
Precisely. I think this frames the debate well. It’s also important to note that this isn’t an invitation to the judiciary to play legislator. Instead it’s designed to prvent abuses of the legislature such as the abominable act of slavery (which spawned the 14th amendment) or racial discrimination. Is this on par with that? So begins the debate.
I guess we’re agreed then. Mr. Claybourn will go out and lobby for equal marriage rights for same-sex couples in Indiana. Right?
And, just to ask. Just when might the legislature of Indiana pay attention to his lobbying?
Raj, you may not know this, but Josh has long favored a plan that does not include “same sex marriage,” but that strikes me as equally fair to all: He has supported ending the government sponsorship of marriage entirely, leaving this as a question for individuals and faith groups to decide on their own. Meanwhile, the government would issue civil unions to all that carry with them the responsibilities and rights now granted to heterosexual couples. He has several times posted a quote from C. S. Lewis that suggests nearly the same thing.
I find this solution increasingly persuasive, in particular because the Nebraska amendment really does infringe on religious liberties in one important way–It declares the state to be against same-sex marriages performed by the churches that already recognize them, while also declaring that the state supports the marriages of the other denominations. Unitarians, Reform Jews, members of the United Church of Christ, Quakers, and several other denominations are thus singled out in a way that is not appropriate. Josh’s plan would fix all that, while also answering the question about polygamous marriage, by declaring that governmental unions and religious marriage have nothing to do with one another.
Jason, you’re a smart guy. But those of us who have to actually live in the real world know that the state isn’t going to get out of the marriage business. So Josh’s “plan” is a non-starter ab initio. From the beginning. It isn’t going to happen. Why should it? What your description of Josh’s plan is the equivalent of the “we had to destroy the village in order to save it” that some of us had to put up with during the Vietnam War.
So Josh had to destroy marriage in order to save it from the queers. I’m sorry Jason, but some of us aren’t totally stupid.
BTW, I found CSLewis’s major work, the Chronicles of Narnia, a wonderful work. I thought so–when I was a child. My 5th grade teachter would read to us from it, and I read all of the books on my own.
But I’m not a child any more.
Go talk among yourselves.
Raj, those were some of the most ill-considered comments I’ve ever seen from you. Do you really imagine that I don’ have to live in the real world, merely because I often write online?
Tellingly, you said not a word about the essential justice of the plan that’s been advocated. I don’t think it is subject to question, not even by you. And supporters of same-sex marriage can hardly denounce another plan for its lack of political support (talk about the pot calling the kettle black). What I stand for, even more than same-sex marriage, is equality before the law. Getting there one way or the other is fine with me, no matter how politically unpopular it is.
That the 14th Amendment has been wrongly “intrepreted” has all sorts of consequences. It is the nature of judicial systems to seek expansion and this dates back at least to Coke.