A Stitch in Haste

"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)

"Today the Eighth Circuit Court of Appeals affirmed Nebraskans' right to modify their Constitution as they see fit."
--Nebraska Attorney General Jon Bruning

Here is what I wrote in May 2005 about the Nebraska bigot amendment:

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.

Here is what the Eighth Circuit Court of Appeals wrote about the amendment:

We likewise reject the district court's conclusion that the Colorado enactment at issue in Romer is indistinguishable from § 29. The Colorado enactment repealed all existing and barred all future preferential policies based on "orientation, conduct, practices, or relationships." The Supreme Court struck it down based upon this "unprecedented" scope. Here, § 29 limits the class of people who may validly enter into marriage and the legal equivalents to marriage emerging in other States -- civil unions and domestic partnerships. This focus is not so broad as to render Nebraska's reasons for its enactment "inexplicable by anything but animus" towards same-sex couples.

Oh really?

Me again:

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)?

Them (I'm paraphrasing):

The answer to that question is "no." Any form of constitutionalized bigotry that is less than a total absolute; any piecemeal form of bigotry -- no matter how irrational, no matter how motivated by mere animus -- is perfectly okay.

If this is now the consensus interpretation of Romer, then Romer is dead, as is essentially all federal litigation for gay rights.

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The appellate decision goes out of its way to cite Hernandez v. Robles, the hot-off-the-presses New York gay marriage defeat. One wonders whether the Circuit Court specifically held off on issuing their decision, hoping for a hook to hang their specious hat on.

Meanwhile, unlike the New York Court of Appeals, the Eighth Circuit panel also cites, wholly improperly, Baker v. Nelson, 409 U.S. 810 (1972), a moot (non-)decision of the Supreme Court that some suggest, wholly improperly, has already foreclosed any federal litigation over same-sex marriage. Gay rights litigants need to pay more attention to this (non-)decision and quash, once and for all, the invalid arguments against same-sex marriage that are based upon it.

The case is CEP v. Bruning, No. 05-2604 (8th Cir., 2006) (PDF - 15 pages)