Irrational Basis

In November 2000, 70% of voters in Nebraska approved an amendment to Article I of the state constitution, known as “Section 29,” which stated:

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.

This new law was sweeping for a couple of different reasons. First, more than just banning same-sex marriage, it barred civil unions and domestic partnerships, and even forbid any protection for any relationship whatsoever between two people of the same gender.

Secondly, as an amendment to the constitution, it established a significant barrier to same-sex couples wishing to seek any type of protection for their relationships by placing the law out of reach of the courts or a legislative majority, instead requiring a new constitutional amendment that could only be achieved by a legislative super-majority or popular referendum. Gay people in Nebraska are unlikely to be able to pull together that kind of support.

A coalition of civil rights organizations sued the state and won in district court, claiming Section 29 violated the federal constitution’s Equal Protection Amendment, as it allows heterosexual couples to lobby to seek legal recognition and protection for relationships other than marriage. Further, they alleged that Section 29 is nothing less than a bill of attainder, a legislative act which serves no legitimate purpose other than to punish an unpopular group.

On July 14 of this year, however, the Eighth Circuit Court of Appeals reversed that decision, and Section 29 stands.

It is important to understand that this was not a “marriage” lawsuit; the plaintiffs in this instance, same-sex couples from Nebraska, were not seeking the right to marry, nor did they assert that one existed. It was an equal protection claim, namely that one specific group of people (gays and lesbians) faced different and more difficult barriers to seeking legal protection of non-marital relationships than another group (heterosexuals) did, and furthermore that this barrier constituted an unjust act of legislative punishment.

Yet the Eighth Circuit ruled that Section 29 was valid because it furthered a legitimate government interest: “the steering of procreation into marriage.”

The broad language of Section 29, forbidding recognition of any relationship whatsoever between two people of the same gender, has sweeping consequences. In 2003, a state senator introduced a bill that would allow both same-sex and different-sex couples in committed relationships make decisions for each other at the end of life about funeral arrangement and organ donation. The state attorney general, Jon Bruning, issued an opinion that the law would be unconstitutional in light of Section 29, so the bill stalled in committee and was never put up for a vote.

Section 29 prevents things like hospital visitation rights, medical leave to care for a sick partner, bereavement leave, medical insurance, inheritance rights, and eligibility for certain tax breaks, not to mention the ability to lobby for the end of discrimination in marriage.

All of these protections, apparently, threaten the Nebraska government’s ability to successfully “steer procreation into marriage.”

In a ruling striking down a similar constitutional amendment in Colorado in 1996, the Supreme Court said such a law would violate the equal protection amendment if it “imposed a broad and undifferentiated disability on a single named group….[and if] the reasons offered for it seem inexplicable by anything but animus toward the class it affects.”

Discrimination cases usually trigger a “heightened” or “strict” scrutiny form of analysis, depending on the group that is being targeted. In this instance, however, the Eighth Circuit said “the Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes.” A “suspect” class is one that is politically impotent (70% opposition in Nebraska), has a history of being discriminated against (duh), and has immutable characteristics (such as race or gender). For the LGBT community, of course, the last is problematic because the issue of whether sexual orientation is “immutable” is not generally settled.

The Eighth Circuit then claimed to apply “rational basis” – meaning, a legitimate government interest justifies the law. Yet like New York State’s top court earlier this month, the Eighth Circuit casually forgot to discuss just how allowing same-sex couples to lobby for protections would impede “steering procreation into marriage.”

Having found that Section 29 was “rational,” it was then an easy jump for the Eighth Circuit to knock down the claim that Section 29 was a bill of attainder.

A bill of attainder is a legislative act (or, in this instance, a voter initiative) that applies to “named individuals or easily ascertainable members of a group” and inflicts punishment without judicial trial. Section 29 disenfranchises same-sex couples from the political process by making it more difficult for them than for opposite-sex couples to lobby for protections for relationships outside of marriage.

Notably, during the campaign in support of Section 29, activist Guyla Mills of the Defense of Marriage Amendment Committee distributed literature arguing that Section 29 was needed “to send a message to society….that heterosexuality and homosexuality are not morally equivalent.” Supporters of Section 29 had also been quoted as saying “homosexuality is a sin and should not be sanctioned even by ‘quasi-marriage’ unions.” If the real purpose of Section 29 had, in fact, been to “steer procreation into marriage,” wouldn’t it have been better to produce literature to “send a message to heterosexuals that procreation belongs within traditional marriage”?

Even though it is obvious that the objective of Section 29 was to make political access more difficult for gay people, not to encourage procreation within marriage, the Eighth Circuit found that “the political harm to [gay people] is not punishment in the functional sense because it serves the nonpunitive purpose of steering heterosexual procreation into marriage, a purpose that negates any suspicion that supporters of § 29 were motivated solely by a desire to punish disadvantaged groups.” [emphasis added]

Still, gay folks and fair-minded allies in the heterosexual majority should not be overly disheartened by our enemies in high places. Simply put, procreation within traditional heterosexual marriage is not threatened by legal recognition of same-sex relationships or full participation by LGBT people in the political process. If this is the best legal argument opponents of fairness can put forward, then we are close to victory indeed.