(And I really wasn't going to post a diary today.)
Today, U.S. District Judge Joseph Bataillon (a Clinton appointee) struck down Thursday Nebraska's constitutional provision prohibiting gay marriage or civil unions, which had 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.
The constitutional amendment, known as Initiative 416, passed in 2000 with 70 percent of the vote. It would prevent gays who work for the state or the University of Nebraska system from sharing health insurance and other benefits with their partners.
Bottom Line: The result of today's opinion is not that gay marriage or civil unions are legal in Nebraska or even that some form of same-sex benefits are required; it's just that gays have the right to petition the legislature to seek equal protection just like any other group seeking civil rights protections, and the issue cannot be "taken off the table" through constitutional amendment.
In essence, law-talking-guys, he struck it down under the same grounds as
Romer v Evans, that the Amendment unduly infringed on gays' (and only gays') first amendment rights to seek legislative protection -- not on equal protection. Here's your key parts of the ruling:
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 to participate in the political process. . .
Section 29 also interferes with individuals' abilities or incentives to join together in pursuit of a common endeavor. Nebraska's amendment has expansive reach. The State reads the amendment as rendering unconstitutional any proposed legislation that would elevate a same-sex relationship or agreement to the same plane as married persons. A broad range of potential legislation falls under the purview of Section 29. Proponents of legislation that would extend rights or benefits to same-sex relationships are discouraged and/or dissuaded from enthusiastic advocacy of such goals by the State's expressed
conclusion that most such legislation would violate the Nebraska Constitution. Section 29 significantly chills the incentive to associate and to organize in pursuit of those goals. The
ability of proponents to garner support and financial backing for the pursuit will necessarily be diminished by Section 29. The result of the amendment is to discourage or impair the formation of groups and/or associations to lobby for changes in legislation that would benefit same-sex couples.
Most importantly, in addition to burdening intimate and expressive associational rights, 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, or for that matter, would change the status quo concerning numerous applications of family law, custody, or adoption issues, thus affecting citizens other than gays or lesbians.
. . . This is tantamount to denial of access to the means to effect any sort of social or political change. The knowledge that any such proposed legislation violates the Nebraska Constitution chills or inhibits advocacy of that legislation, as well as impinging on freedom to join together in pursuit of those ends. Proponents of any legislation that would enhance same-sex partner's rights (including awarding benefits, allowing adoption, etc.) must surmount the hurdle of passing a constitutional amendment. This creates a barrier to participation in the political process that no minority population is ever likely to surmount.
There is, also, some equal protection language as well:
The reach of Section 29 is at once too broad and too narrow to satisfy its purported purpose of defining marriage, preserving marriage, or fostering procreation and family life. It is too narrow in that it does not address other potential threats to the institution of marriage, such as divorce. It is too broad in that it reaches not only same-sex "marriages," but many other legitimate associations, arrangements, contracts, benefits and policies. . . . Section 29 goes so far beyond defining marriage that the court can only conclude that the intent and purpose of the amendment is based on animus against this class. . . .
The State contends that a majority of Nebraska citizens have decided that Section 29 is the will of the people. In most instances, the popular vote carries much weight and should be afforded great deference. However, "[o]ne's right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."
And, Armando, while he was at it, the Judge also called it a bill of attainder:
The determinative factor in this case is whether Section 29 can be seen to inflict punishment. . . . The court finds that Section 29 is directed at gay, lesbian, bisexual and transsexual people and is intended to prohibit their political ability to effectuate changes opposed by the majority. Section 29 operates as a legislative bar for these specified groups. Accordingly, the court finds that the challenged legislation falls within the historical meaning of the term punishment.
Big win for the good guys today. Dunno if it'll survive appeal, but, wow.