Federal Challenge to State Marriage Amendments...ACLU

[LeftHander]

For those who need to know...

The ACLU, Lambda Legal and the Citizens for Equal Protection have been battling at the federal level in the 8th Circuit Court of Appeals, the Nebraska Marriage amendment which is essentially the same as the one just passed by Wisconsin.

First, the amendment was struck as unconstitutional by the lower court but then was reversed on appeal. The appeals court has been asked to reconsider under cited precedents. It ispretty clear that this is likely the case that will ascend to the supreme court on appeal. I think it is a mandatory motion to ask for reconsideration before seeking the next step which is asking the Supreme Court to consider the case. (I think...?)

This was as of July.

[hfojvt]

1. why did the lower court say it was unconstitutional?

What was their reasoning?

I would not expect anything out of SCOTUS, but they surprised me on the Oregon law.

[LeftHander]

2. Read all about here:

http://www.aclu.org/lgbt/relationships/12166res20050405.html

The docs are online....there is 43 page ruling from the federal district Nebraska District court that led to the 8th district appeals reversal. I think if you look at the make up of the 8th circuit court of appeals it may be stacked with social conservatives. (i.e. activist judges.... :>/ )

[LeftHander]

3. court opinions from the ruling...

Laws “declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. Such laws “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Id. at 634. It is clear that the government can regulate conduct, e.g., criminal activity, but the government “may not create classes among its citizens on the basis of who they are rather than what they do.”

More.....

The factors of legislative purpose and intent to punish are overlapping. The State
argues that the purpose of Section 29 is to retain the traditional meaning of the word
“marriage” as being between a man and a woman and, thus, it does not punish or prohibit
any conduct. Plaintiffs, on the other hand, contend that “Section 29 imposes punishment
by depriving lesbian, gay and bisexual people of their civil and political rights to attempt to
persuade their governmental representatives and employers to protect their intimate
relationships and by singling them out for moral censure.” Pls.’ Brief in Opp'n to Mot. to
Dismiss, Filing No. 30 at 32. Plaintiffs further contend that Section 29 was motivated purely
to prevent gays and lesbians from accessing the political system and to render them
second-class citizens. See, i.e., Filing No. 1, ¶ 21 (comments by Guyla Mills, who led the
petition drive, stating that Section 29 was to make known that homosexual and
heterosexual marriages are not equivalents and that homosexual relationships are morally
inferior). In its brief the State admits that Section 29 limits plaintiffs’ access to the
legislative process. “There is no civil right to control the terms on which a political battle
will be fought, i.e., on a local, employer-by-employer, or legislative level rather than on a
state-wide voter initiative level.” Filing No. 66, Defs.' Trial Brief at 1. “hey do not have
a constitutional right to win or force the battle to be fought on their terms.” Id. These
statements make it clear that the intent of Section 29 is to silence the plaintiffs’ views and
dilute their political strength.

[LeftHander]

4. 8th Circuit Court of Appeals Judges

Hon. James B. Loken, Chief Judge - Minneapolis, MN - Appointed October 17, 1990
Hon. Roger L. Wollman - Sioux Falls, SD - Appointed July 22, 1985
Hon. Morris S. Arnold - Little Rock, AR - Appointed May 26, 1992
Hon. Diana E. Murphy - Minneapolis, MN - Appointed October 11, 1994
Hon. Kermit E. Bye - Fargo, ND - Appointed March 9, 2000
Hon. William Jay Riley - Omaha, NE - Appointed August 3, 2001
Hon. Michael J. Melloy - Cedar Rapids, IA - Appointed February 14, 2002
Hon. Lavenski R. Smith - Little Rock, AR - Appointed July 19, 2002
Hon. Steven M. Colloton - Des Moines, IA - Appointed September 30, 2003
Hon. Raymond W. Gruender - St. Louis, MO - Appointed June 5, 2004
Hon. Duane Benton - Kansas City, MO - Appointed July 2, 2004

Senior Judges

Hon. Donald P. Lay - St. Paul, MN - Appointed July 22, 1966
Hon. Gerald W. Heaney - Duluth, MN - Appointed November 3, 1966
Hon. Myron H. Bright - Fargo, ND - Appointed June 7, 1968
Hon. John R. Gibson - Kansas City, MO - Appointed March 30, 1982
Hon. George G. Fagg - Des Moines, IA - Appointed October 1, 1982
Hon. Pasco M. Bowman - Kansas City, MO - Appointed July 19, 1983
Hon. Frank J. Magill - Fargo, ND - Appointed March 4, 1986
Hon. C. Arlen Beam - Lincoln, NE - Appointed November 9, 1987
Hon. David R. Hansen - Cedar Rapids, IA - Appointed November 18, 1991

LOKEN, BOWMEN and SMITH were presiding Judges in the reversal. They are in BOLD above...
Notice the appointment dates....they appear to be all Republican.

BOWMAN by Reagan, LOKEN by BUSH Sr. and SMITH by W.

[hfojvt]

6. there's only two non-republicans on that list

Murphy and Bye.

[LeftHander]

5. States Rights vs. Equal Protection - 14th Amendment

In 2000 when Nebraska banned same sex marriage and any thing similar from legal recognition a legislator proposed a law allowing same sex domestic partners to leave work due to a partners illness or injury. In one instance a women was forced to wait five days, request and utilize vacation days to spend time at the bedside of a badly injured partner. Had it been a marriage work leave was guaranteed. This couple happened to be gay and were denied the right to work leave. As a result a bill was introduce ot the state legislature for remedy, the bill never exited committee as it was instantly struck down as unconstitutional under the terms of the new amendment by the State attorney general. A "domestic partner" was in all intensive purposes similar to marriage.

So the real purpose of these amendments is clear, to not only block same sex couple from marriage but to prevent them from petitioning government to legally acquire the missing rights.

So one class of citizens has been barred from partitioning the government for remedies to unequal treatment under the law. That sound unconstitutional at a federal level.

This was recognized by both the district court and acknowledged by the appellate court as a genuine grievance. The state argued that the plaintiffs had not been harmed. The appellate and district court disagreed.

The appellate court also determined that the original complainant were correct and right to argue that the amendment was created in the spirit of targeting one group and making them second-class citizens under the law, gay people. the state denied such a argument was "ripe".

In this bizzaro-republican world how ever the complete reversal of the district court's decision is based on two main arguments.

1. that the federal supreme court has never ruled that the states cannot set it's own standards for marriage.

2. States can indeed define who can marry preferring one group over another, they set age limits.

They even cited Scalia's references to polygamy.

So they reversed the ruling based on very sketchy grounds. It is clear why the reconsideration was asked for by the ACLU...becauue three other judges would likely review the case.

So it really appears to be a stalling tactic by conservatives who are waiting for that next W SCOTUS appointment to all but allow a continued bizzarro-world ruling and allow these state amendments to stand. That would really be bad to have happen. This case has been in the courts for years.