Different River

”You can never step in the same river twice.” –Heraclitus

May 12, 2005

Court Declares Constitutional Right to Same-Sex Marriage

Filed under: — Different River @ 11:06 pm

Well, it’s finally happened. The Federal District Court for Nebraska has declared a constitutional right to same-sex marriage. In particular, Judge Joseph H. Bataillon has declared that Article 29 of the Nebraska Constitution is “unconstitutional, as it it (1) a denial of equal protection and is (2) a bill of attainder.”

Article 29 of the Nebraska Constitution states:

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 was adopted as a constitutional amendment by the voters in November 2000, with over 70% of the vote. Keep this in mind as you read the following.

Read the court’s order. It’s an exercise in Orwellian language unlike any I’ve seen in a long time.

Dealing with (2) first because it’s simpler: A “bill of attainder” is “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial” (see here). This judge, while conceding that, “Historically, bills of attainder imposed the death penalty,” nevertheless finds that this amendment “singles out a particular group and restricts its ability to effect political change,” which, he figures, is pretty much the same thing, because it “is intended to prohibit their political ability to effectuate changes opposed by the majority.”

In other words, if you can get your legislation passed because a majority voted to prohibit it, you’ve been punished, and that’s unconstitutional. (Imagine if this standard were applied to every law and every group!)

“Equal Protection” is a reference to the Fourteenth Amendment‘s extension of the First Amendment restrictions to the states. (Prior to that, the First Amendment restrained only Congress.) Fair enough. The First Amendment includes a right “to petition the government for a redress of grievances.” Fair enough.

However, this court decision claims that the right to petition the government for a redress of grievances is violated by a constitional amendment prohibiting that government from recognizing same-sex marriage. Huh? You heard me. Here are the court’s exact words:

As applied to the undisputed facts of this case, the court finds that Section 29, as written and as applied, imposes significant burdens on both the expressive and intimate associational rights of plaintiffs’ members and creates a significant barrier to the plaintiffs’ right to petition or participate in the political process. …

Most importantly, … Section 29 erects significant burdens on the promotion of, or lobbying for, any legislative or governmental action that would eventually extend rights or recognition to gays and lesbians

Read that last (bolded) sentence again. Basically, this is saying that by amending the constitution to prohibit a certain type of law, the right to petition the legislature for that type is violated.

Well yes, that’s the point!

But according to this court, when 70% of the voters voted for something, and this violates the right of the other 30% to petition the legislature to undo what the 70% of the people voted for.

By this logic, any constitutional amendment which puts anylimit on the powers of the legislature is a violation of the First Amendment. After all, an amendment prohibiting slavery inhibits wannabe slaveholders from petitioning for restoration of the “right” to hold slaves. (Haven’t heard any petitions for that since the Thirteenth Amendment, right? See my point?) An an amendment guaranteeing free speech inhibits advocates of censorship from petitioning the legislature for censorship. An amendment barring unreasonable searches and seizures inhibits advocates of a police state. An amendment that prohibits the legislature from prohibiting the free exercise of religion inhibits atheists from petitioning for the outlawing of religion, Catholics from petitioning for outlawing Protestantism, Protestants from petitioning for outlawing Catholicism, and Nazis from petitioning for killing all the Jews. And, of course, all those groups have been subjected to “punishment” under that “bill of attainder” that used to be called the “Bill of Rights.”

In fact, by this logic, any time the people place any limit whatsoever on the powers of government, the court could strike down that limit by claiming it violated the rights of opponents to petition for the government to exercise power in excess of that limit.

The real kicker is, the judge based his opinion on precedent, claiming (correctly) that the Supreme Court had made a similar holding in Romer v. Evans (1996).

Back in the days of the Declaration of Independence, we believe that governments “deriv[ed] their just powers from the consent of the governed.” Now, we are told that any limits on the governed place on the government violated the rights of the governed.

If this is allowed to stand — and there’s no reason to believe it won’t be — there will be no end to it. There will be — if there are not already — no limits to the power of government, except perhaps the preferences of individual federal judges. Judges who, once appointed, are by design unaccountable for their decisions. Judges have already ordered legislatures (in Vermont and Massachusetts) to pass new laws regardless of whether they like them, and now they have declared that the people have no right to restrict the government from passing laws they don’t like. The judiciary has gone beyond judicial activism and into self-parody.

Other thoughts so far:

Eugene Volokh has an excellent post on this decision. He makes the same points, only better and less dramatically (he is, after all, a law professor). He also predicts reversal on appeal. I hope he’s right, but I’m not betting on it.

A lawyer who writes under the name “Spoons” has a way of translating Prof. Volokh’s article into more dramatic terms.

4 Responses to “Court Declares Constitutional Right to Same-Sex Marriage”

  1. jpe Says:

    What a weird decision, and I say this as a pretty staunch pro-gay marriage by any means kinda person. Two things that are striking about this: first, the gay rights folks have been pretty disciplined about sticking to the state court strategy. Obviously, someone broke ranks, and I’m sure there’s going to be a lot of internecine warfare over this. I’d imagine that the gay rights legal groups are angry, cuz when this decision gets overturned (which it will), it creates more negative precedent (persuasive negative precedent, but precedent nonetheless).

    Second, I agree with the judge that the second clause (incidents of marriage) of the MA is fundamentally messed up, and so broad and ambiguous as to be border-line unconstitutional. Still, even if I were committed to overturning the amendment, if I were him I would’ve punted for now, waited for a private contract to have been voided, and then overturned the amendment.

    But, then again, the opinion really doesn’t seem driven by anything approaching sound reason or tactical canniness. Weird.

  2. Different River Says:

    JPE: They had to go to a federal court rather than a state court. This was an amendment to the state constitution, so by definition it can’t be unconstitutional from the state’s point of view. They also went to the federal courts in Romer v. Evans, which overturned an amendment to the Colorado constitution which would have prohibited affirmative action and preferential hiring for gays (but was found by the Supreme Court to violate the federal 14th Amendment, by impairing the ability of gays to petition for preferential treatment).

    They could not really have wauted for a private contract to be voided, since the amendment would not have prohibited any private contracts. It merely prohibited the state from recognizing same-sex marriage, or creating a new type of relationship that is the same thing under a different name.

  3. ICB Says:

    You’re understanding of Bills of Attainder is incomprehensible. Please read Akhil Reed Amar’s article “Romer’s Rightness” in the Colorado Law Review, or Larry Tribe’s discussion of the Clause in his constitutional law treatise. Legislatures’ may not single out individuals or groups (which could be broken down to named individuals) based on their “status,” or simply because of who they are. Laws must apply generally…not to specific people. That is why–quite straightforwardly–prohibiting same-sex marriage is a Bill of Attainder.

  4. Different River Says:

    ICB: Obviously laws can be based on status, if they don’t single out individuals. If laws couldn’t be based on “status,” then they couldn’t criminalize rape (only applies to men), ban possession of guns by felons, or pay retired employees. Social Security would be a bill of attainder since you have to be a certain age (or have certain disabilities) to collect. Incomes taxes discriminate on the basis of status — that is, how much income you make — and police couldn’t arrest people due to their status as law enforcement operators.

    Get real!

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