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First Round Victory in Nebraska

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Federal Court green lights legal challenge to state’s anti-gay amendment

The state of Nebraska was rebuffed in its effort to win dismissal of a lawsuit that challenges a constitutional amendment approved by voters in 2000 denying a broad range of partnership rights for same-sex couples.

A federal judge in Omaha denied the state’s motion on November 10.

Strongly rejecting the state’s position, District Judge Joseph Bataillon accepted arguments advanced by the Nebraska chapter of the American Civil Liberties Union (ACLU) and two Nebraska gay rights organizations that the state constitutional ban on any legal recognition for same-sex partners potentially violates both the federal Equal Protection Clause and the constitutional ban on bills of attainder.

The state argued that the case should be dismissed because nobody in Nebraska had yet suffered any harm from the new constitutional provision, which, in addition to banning recognition of same-sex marriages in Nebraska, states: “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.”

Pointing out that same-sex partners in Nebraska had no legal recognition prior to the vote on this measure, the state argued that they had not suffered a legally recognizable harm. The state also argued that no harm would be suffered unless some government policy recognizing same-sex unions was declared unconstitutional under the challenged provision.

The plaintiffs showed that a state legislator proposed a limited domestic partnership bill in January, but that after the attorney general opined that it would be unconstitutional she abandoned any attempt to get it enacted. Based on this experience, they argued that the constitutional amendment in effect singled out gay people as a group and deprived them of the ability to use the normal legislative process to advance their interests. This argument was used successfully within the Colorado state courts in challenging that’s state’s infamous Amendment 2, which banned any state or local gay rights laws there.

Bataillon found that the plaintiffs adequately alleged a constitutionally recognizable harm. The judge also rejected the state’s argument that the dispute was not yet “ripe” for litigation, pointing out that the constitutional provision had already tripped up the plaintiffs in their attempt to get a bill considered in the legislature.

Perhaps more interesting, and rather novel, is the bill of attainder argument. A bill of attainder is a law enacted to “punish” a specific individual or a group. Under our system of government, the legislature can pass general criminal or regulatory laws, but is prohibited from passing laws intended to inflict “punishment” on specific groups or individuals, since it is the role of the courts, not the legislature, to decide whether particular individuals have violated the law and merit punishment. The plaintiffs argued that the constitutional amendment singled out gay people as a group, excluding them from the normal political process.

Again, Bataillon found that the plaintiffs had come up with a plausible claim, finding the amendment identified “an easily ascertainable group” and, more significantly, that the disadvantage it imposes can be considered a “punishment” according to past interpretations of the bill of attainder provision.

“Clearly, plaintiffs have made an initial case that the law in question operates as a legislative bar for their specified groups,” Bataillon wrote. “Accordingly, I find that the challenged legislation falls within the historical meaning of the term punishment.”

Even more significantly, Bataillon quoted the U.S. Supreme Court’s 1996 opinion that finally threw out Colorado’s Amendment 2 to support his conclusion that a law limiting legislative access will “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”

“[The amendment] does not just withhold a benefit; it actually prohibits same-sex relationship couples from working to obtain government benefits,” Bataillon asserted. “If the purpose, as offered by the defendants, of [the amendment] is merely to maintain the common law definition of marriage, there would be no need to prohibit all forms of government protection or to preclude domestic partnerships and civil unions. I conclude that the plaintiffs have met the legal requirements for stating a claim of bill of attainder.”

Although this was just a ruling on the state’s motion to dismiss and not a decision on the merits of the plaintiffs’ claim, Bataillon’s analysis of the issues suggests that plaintiffs have a winner on their hands and that the challenged part of the Nebraska constitutional amendment is likely to fall.

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Updated 5:17 pm, July 20, 2018
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