Nebraskans Can Still Decide

Last week’s decision striking down Nebraska’s “marriage protection” amendment is an extraordinary use of the federal constitution to promote continuing legislative deliberation.

The opinion doesn’t strike down the state’s statutory prohibition of same-sex marriage. It just says that the prohibition cannot be locked into the state’s constitution.

The opponents of same-sex marriage are already castigating the decision as the most anti-democratic judicial intervention. When earlier courts in Hawaii, Vermont and Massachusetts required those states to give some legal recognition to same sex couples, they did so on the basis of their state constitutions. This left open the possibility for the people to overrule these decisions by amending their state constitution.

But the Nebraska opinion is the first decision to strike down a state constitutional marriage provision itself for running afoul of our federal constitution. It thus seems to preempt the people of state from defining the meaning of marriage.

You just know that President Bush will seize upon the opinion and argue that the only solution for this judicial activism is to amend the federal constitution.

But the opinion does not preempt the ability of Nebraskans to prohibit same-sex marriage. It just says that Nebraskans have to do this legislatively. The people’s representatives in state’s unicameral legislature can still deny recognition, but they have to be willing to hear continuing petitions to change the law.

What is extraordinary about the Nebraska opinion is that it is not about substantive marriage rights. It is centrally about maintaining a continuing democratic deliberative process.

The plaintiffs in the case did not seek any “recognition of same-sex marriages, civil unions or domestic partnerships as a remedy in this case.” They sought “only ‘a level playing field’ that would permit them to access the Nebraska Unicameral to lobby for legal protections.”

The judge found that the federal constitution prohibited the state from taking the recognition of legal rights of same-sex couples out of the legislative arena.

Even though more than 70% of the populace voted in favor of the state-wide constitutional initiative in 2000, the judge ruled that the federal constitution prohibits the state from limiting the ability of same-sex couples to petition the legislature for redress.

James C. Dobson, founder of Focus on the Family, has already decried as “ludicrous” the idea that the amendment somehow disenfranchises supporters of same-sex marriage: “they have every right to undertake the amendment process themselves and get a different measure passed – that's the way democracy is designed to work.”

But court disagreed. It was constitutionally unreasonable to abrogate the ability of minority to petition the legislature for relief. The court emphasized: “This case is about a fundamental right of access to the political process, not about the end result of that process. It matters not that the group is gay and lesbian. Members of all groups, which include those that are controversial, have a fundamental right to ask for the benefits and protections from the government.”

So in a sense this decision means that a state statute is superior to the state constitution. Normally we think of the constitution as superior law. But here is a special situation where a rule of law becomes unconstitutional merely because it is put in the less amendable constitution. After this opinion, the statutory prohibition stands, but the constitutional prohibition falls.

The statute’s weakness is its greatest strength. The fact that the statute is more easily amended means that same-sex couples retain a more vibrant right to petition a deliberative body for redress of their grievances.

The U.S. Supreme Court upheld similar reasoning in 1967 when it struck down an analogous California constitutional amendment. The infamous Proposition 14 prohibited the state’s legislature from considering fair housing measures. The Supreme Court found that the legislature might choose not to adopt such measures but the constitution could not ban them.

You can find a deeper analysis of this type of constitutional thinking in these two fine articles: Vikram D. Amar & Evan H. Caminker, Equal Protection, Unequal Political Burdens, and the CCRI, 23 Hastings Const. L.Q. 1019 (1996) (hereinafter Political Burdens); Vikram D. Amar & Evan Caminker, The Hunter Doctrine and Proposition 209: A Reply to Thomas Wood, 24 Hastings Const. L.Q. 1001 91997).

These opinions do not mean that all state constitutional provision are infirm. Most prohibitions protect individuals from government encroachment (“Congress shall pass no law . . .”). Other prohibitions restrict the rights of individual generally. The opinion only strikes at state constitutional provisions that preempt discrete minorities from access to their legislature.

Voter initiatives have many democratic advantages, but they preclude one kind of deliberation. Individual voters have no duty to listen or to speak to people they don’t like. But legislatures are different. A minority view that can find support of a single legislator has the right to be heard.

The supporters and opponents of legal recognition for same couples actually agree on one important point. They both know that the future belongs to equality. Polls show that each successive generation is more amenable to recognition. My own state of Connecticut just democratically embraced civil union. To paraphrase our president, equality is on the march. That is why it is so important for the opponents of same sex recognition to try to preempt future democracy by locking their non-recognition into state and federal constitutions now. They can also reading the writing on the wall.

The state of Nebraska in its brief argued, “There is no civil right to control the terms on which a political battle will be fought, i.e., on a . . . or legislative level rather than on a
state-wide voter initiative level.”

But the court found that Nebraskans will have to fight this battle in its legislature. Its legislatures will have to be continually open to petitions and debate and to give reasons for the denial of same-sex rights. They have to have the opportunity to change their minds.