A Stitch in Haste

"It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation is to be subjected to more exacting judicial scrutiny under the general prohibitions of the 14th Amendment... Nor need we enquire...whether prejudice against discrete and insular minorities may be a special condition which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities and which may call for a correspondingly more searching judicial inquiry.
--U.S. v. Carolene Products, 304 U.S. 144 (1938) (footnote 4)

"We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do."
--Romer v. Evans, 517 U.S. 620 (1996)

Regarding Citizens for Equal Protection, Inc. v. Bruning, the Nebraska same-sex marriage ban decision handed down this week, the consensus is both right and wrong. It's a (mostly) horribly reasoned decision. But it should also clearly be upheld on appeal.

As Donald Rumsfeld might say, a judge writes an opinion based on the case he has, not on the case he wishes he had. The plaintiffs raised the "innovative" arguments in the case regarding First Amendment infringements and Bills of Attainder. So Judge Bataillon had to respond to them. Even if he responded incorrectly, it is wrong to fault him for actually writing about what the plaintiffs sued for. (One might also ask how well the Nebraska Attorney General responded to those novel arguments and what tools he gave Judge Bataillon to use or not use in writing his decision — a bad argument still trumps a worse argument, or no argument at all.)

In any case, I think those who are critical of these portions of the decision are mostly correct, although those who are being excessively insultory toward Judge Bataillon should also lighten up. A federal judge deserves better. And those who blindly chant "Professor X says it's wrong, so it must be wrong" should ask how intellectually sophisticated their own thinking is.

And it's all beside the point anyway. The crux of this case has nothing to do with the First Amendment or with Bills of Attainder. This case is all about Romer, and any discussion about it must take place within the Romer context.

Before I dive head-first into comparing this case to Romer, let's keep two things in mind: Romer is still wholly good law. It has never been distinguished or limited or isolated by the Supreme Court. Second and related, Romer was decided (6-3, incidentally) by the same nine Justices currently sitting on the Court. So there is no reason to think that the current Court's reasoning and dictates flowing from Romer are in any way no longer the law of the land.

So, acknowledging the confusing and probably wrong fluff contained within the decision, let's now focus on reconciling Bruning with Romer.

As background, Romer overturned the following Colorado state constitutional amendment:

Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.

The court reasoned that such an amendment failed rational basis review (i.e., that the Amendment was not "rationally related" to a "legitimate government interest").

For our purposes, I think the relevant framing of Romer is found here:

First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects...

In other words, a key reason the Colorado amendment was unconstitutional was because it was so broad — it essentially banned any and all forms of anti-discrimination laws for gays. This is a theme that recurs throughout Justice Kennedy's decision — the sheer totality of the Colorado amendment's implications.

Nebraska's Amendment 29 strikes a similar chord:

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.

It is not merely a DOMA law. It is not merely a prohibition of same-sex marriage. It is a blanket prohibition against all forms of gay marriage and gay marriage equivalents or the granting of even the slightest benefit conferred by marriage. Not only can't gays get married, they can't get even seek the puniest benefit offered to married couples, by anyone, private or public, under any circumstances. Nebraska's Attorney General has openly admitted this. It bans everything even remotely related to the protections afforded by the legal status of marriage. In fact, as the opinion points out, the state's position on "marriage replication" through contract or other arrangement is that the only way partnered gays could seek legal recognition of any aspect of their partnership, would be to first disavow publicly that they are in fact partners. Kafka would be proud; Orwell would be humbled.

Colorado: "absolutely no anti-discrimination laws of any kind."

Nebraska: "absolutely no partnership protection laws of any kind."

So the question as it applies to Nebraska becomes the following: Is "marriage" a sufficient subset of "everything" for Romer to apply? Or was the Colorado amendment so much worse than the Nebraska amendment that the Romer court's "shock and awe" over its implications would not be repeated were it reviewing the Nebraska case (as it may well in the future)?

Here is where the second part of Romer's reasoning comes into play. If the broad expansive sweep of Colorado's amendment indicated its motivation as being "mere animus" toward gays, then doesn't the same yardstick apply in Nebraska? If Nebraska went so far out of its way to make sure that gays get absolutely nothing even remotely resembling any marriage-related protection, doesn't that suggest that "mere animus" was the motivation there too, rather than any of the other sundry bromides that gay marriage opponents constantly recite?

Reasonable minds might disagree, but I don't think so. The Nebraska amendment is so close to and so resonant with the Colorado amendment that Romer simply must apply. It would take intellectual pretzel-twisting of the most cavalier magnitude to argue that Bruning can be fatally distinguished from Romer.

Right for the wrong reasons is still right. See past the flaws in Judge Bataillon's decision and focus on the insights. Romer is still good law and clearly applies to the Nebraska amendment, which, since it is hopelessly overbroad and presumptively motivated only by mere animus toward gays, fails to meet the rational basis review mandated by the Fourteenth Amendment. It is unconstitutional and must remain voided on those grounds if not on the others.

Two concluding thoughts. First, for those who brazenly assert that Judge Bataillon's opinion is "quite mistaken," consider this passage from Romer:

"[T]he Supreme Court of Colorado, in a second opinion, affirmed the ruling [striking down Colorado's amendment]. We granted certiorari and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court."

Like I said, right for the wrong reasons is still right.

Second, Bruning is a good excuse to go back to Romer and read Justice Scalia's dissent in that case. Not only does it illustrate the man's limitless vitriol and contempt toward gays, but it may well be the single most poorly-argued decision he has ever written. For example, he repeatedly called Colorado's amendment "modest" and "reasonable" and created a bizarre fantasy land where gays are a "politically powerful minority" who appeal to the "elite class" of lawyers to obtain "preferential treatment." He compared gays to murderers and anti-discrimination laws to hypothetical laws protecting corrupt politicians. He called protecting an insular minority from an oppressive state constitutional amendment a "facially absurd proposition." He called the majority opinion "terminal silliness."

Forgive me if I save my contempt for a jurist other than Judge Bataillon.