Citizens for Equal Protection v. Bruning

• Decision Date: 14 July 2006
• Docket Number: No. 05-2604.,05-2604.
• Parties: CITIZENS FOR EQUAL PROTECTION, et al., Plaintiffs-Appellees, v. Jon C. BRUNING, Attorney General; Dave Heineman, Governor, in their official capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

455 F.3d 859

CITIZENS FOR EQUAL PROTECTION, et al., Plaintiffs-Appellees, v. Jon C. BRUNING, Attorney General; Dave Heineman, Governor, in their official capacities, Defendants-Appellants.

No. 05-2604.

United States Court of Appeals, Eighth Circuit.

Submitted: February 13, 2006.

Filed: July 14, 2006.

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Matt McNair, Deputy Attorney General (argued), Lincoln, NE (Dale A. Comer Assistant Attorney General, Lincoln, NE, on the brief), for appellant.

Tamara Lange (argued) New York, NY (David S. Buckel, Brian Chase, Sharon M. McGowan, James D. Esseks, New York, NY, Robert F. Bartle, Amy A. Miller, Lincoln, NE, on the brief), for appellee.

Dwight G. Duncan, North Dartmouth, MA, for amicus curiae Alliance for Marriage, Inc.

Vincent P. McCarthy, Laura Hernandez, New Milford, CT, for amicus curiae The American Center for Law & Justice Northeast, Inc.

Paul Benjamin Linton, Northbrook, IL, for amicus curiae The Nebraska Catholic Conference, Family First, Families for America, the Iowa Catholic Conference, the Minnesota Catholic Conference, the Missouri Catholic Conference, the North Dakota Catholic Conference, the Catholic Diocese of Little Rock, Arkansas, the Catholic Diocese of Rapid City, SD, and the Catholic Diocese of Sioux Falls, SD.

Thomas M. Fisher, Solicitor General, Ellen Meilaender, Deputy Attorney General, Anna Tooman and Chris Farris, law clerks, all of the Indiana Office of the Attorney General, for amicus curiae the States of Indiana, Alabama, Arkansas, Colorado, Florida, Kansas, Michigan, Missouri, North Dakota, South Dakota and Texas.

Kim Daniels, Ann Arbor, MI, Matthew F. Heffron, Omaha, NE, for amicus curiae Thomas More Law Center.

Benjamin W. Bull, Glen Lavy, Byron Babione, Randall Wenger, Dale Schowengerdt, Alliance Defense Fund, Scottsdale, AZ, for amicus curiae Focus on the Family and Family Research Council.

Monte N. Stewart, William C. Duncan, Marriage Law Foundation, Provo, UT, for amicus curiae United Families International and The Center for Arizona Policy.

Lynn D. Wardle, Provo, UT, for amicus curiae Thirty-Four (34) Law Professors.

Brian Fahling (WA Bar No. 18894), Stephen M. Crampton (TX Bar No. 05005020), Michael J. DePrimo (MS Bar No. 10813), for amicus curiae American Family Assn., Inc.

Joshua K. Baker, Washington, DC, for amicus curiae Hon. Tom Baker, Carroll Bruling, Jeanne Combs, Patrick Engel, Philip Erdman, Mike Foley, Mike Friend, Lavon Heidemann, Carol Hudkins, Jim Jenson, Robert Kremer, Adrian Smith, Elaine Stuhr and Arnie Stuthman, Members of the 99th Nebraska Legislature.

L. Steven Grasz, Omaha, NE, James D. McFarland, Lincoln, NE, for amicus curiae Nebraska Family Council.

Steven W. Fitschen, Colleen M. Holmes, National Legal Foundation of Virginia Beach, VA, for amicus curiae The National Legal Foundation.

Mathew D. Staver, Erick W. Stanley, Anita Staver, Rena Lindevaldsen, Mary McAlister, Longwood, FL, for amicus curiae Liberty Counsel.

Bill J. Hayes, Neely L. Fedde, Tim J. Riemann, Jana L. Torok, Overland Park, KS, for amicus curiae Susan Ann Koenig, Esq., Koenig & Tiritilli P.C., L.L.O.

Tara D. Sutton, Niall A. MacLeod, Minneapolis, MN, for amicus curiae Certain Chapters of Parents, Families & Friends of Lesbians & Gays.

Paul M. Smith, Washington, DC, for amicus curiae American Psychological Assn.

Thomas H. Boyd, Julie M. Engbloom, Matthew D. Spohn, Minneapolis, MN, for amicus curiae National Association of Social Workers and Nebraska Chapter of the National Association of Social Workers.

Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.

LOKEN, Chief Judge.

In November 2000, Nebraska voters passed by a large majority a constitutional amendment, codified as Article I, § 29 of the Nebraska Constitution, providing:

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.

Three public interest groups whose members include gay and lesbian citizens of Nebraska commenced this action against the Governor and the Attorney General in their official capacities seeking an order declaring that § 29 violates the Equal Protection Clause and is an unconstitutional bill of attainder, and permanently enjoining its enforcement. The district court denied the State's motion to dismiss for lack of standing and ripeness. Citizens for Equal Protection, Inc. v. Bruning, 290 F.Supp.2d 1004 (D.Neb.2003). After the parties submitted the case on a Joint Stipulation of Facts, the district court held that § 29 violates the Equal Protection Clause, is an unconstitutional bill of attainder, and deprives gays and lesbians of their First Amendment rights. Citizens for Equal Protection, Inc. v. Bruning, 368 F.Supp.2d 980 (D.Neb.2005). The State appeals.¹ We reverse.

I. Jurisdiction Issues

On appeal, the State renews its contentions that Appellees lack standing to raise these constitutional claims and that the claims are not ripe for review. Like the district court, we disagree. The State argues that Appellees lack standing — their members have suffered no injury in fact because marriage and domestic partnership licenses are not available to same-sex couples in Nebraska, and Appellees' members can obtain the desired results through other means. However, when the government erects a barrier making it more difficult for members of a group to obtain a benefit, "[t]he `injury in fact' . . . is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit." N.E. Fla. Chapter of the Assoc. General Contractors of Am. v. Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). Appellees allege that § 29 is such a barrier.

The State argues that the constitutional issues are not ripe for judicial review because no court has struck down a law passed by the Nebraska Legislature as inconsistent with § 29. The ripeness doctrine is aimed at preventing federal courts, through premature adjudication, from "entangling themselves in abstract disagreements." Thomas v. Union Carbide Agr. Prods. Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985). The Joint Stipulation of Facts recites that a bill did not advance out of legislative committee after the Attorney General opined that it would violate § 29. Thus, the legal issues raised in Appellees' complaint are not premature or abstract, and the relief sought and granted by the district court would remedy at least some of the alleged injury. Compare Renne v. Geary, 501 U.S. 312, 316-24, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991). For these reasons, we conclude that, whatever the merits of their claims, Appellees have standing to raise the claims and the dispute is, at least in part, ripe for review.

The amicus brief submitted by eleven States makes an additional jurisdictional argument — that Appellees' claims are not justiciable because neither the Governor nor the Attorney General is responsible for the alleged injury § 29 causes Appellees, diminished access to the legislative process. Nebraska does not adopt this contention, but we cannot ignore a challenge to our Article III jurisdiction. See generally Reproductive Health Serv. of Planned Parenthood of the St. Louis Region, Inc. v. Nixon, 428 F.3d 1139, 1145-47 (8th Cir.2005).

Under Nebraska law, the Governor and the Attorney General have broad powers to enforce the State's Constitution and statutes. See Neb. Const. Art IV, § 6; Neb.Rev.Stat. § 84-731. The aforementioned opinion of the Attorney General that a proposed bill would run afoul of § 29 confirms that these broad powers include policing compliance with this constitutional amendment. Of course, § 29 does not require affirmative enforcement by any state official; it functions as a barrier to government action that Appellees desire. The amicus brief argues that § 29 may be challenged, for example, by a suit to compel a county clerk to marry two same-sex partners. But that argument conflates the distinction noted in N.E. Florida Contractors between challenging a barrier and having a right to the ultimate benefit. Here, as we have explained, Appellees have standing to challenge the barrier, and the dispute is ripe for review. Although one may question whether enjoining these two state officers would fully redress Appellees' alleged injuries, we agree with the concession implicit in the State's decision not to press this issue — the Governor and the Attorney General have "some connection with the enforcement" of § 29 and therefore this suit for equitable relief falls within the exception to the State's Eleventh Amendment immunity established in Ex parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 52 L.Ed. 714 (1908). This satisfies the case or controversy requirement of Article III.

II. Equal Protection

In Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996), the Supreme Court considered an amendment to the Colorado Constitution barring all state and local governments from allowing "homosexual, lesbian or bisexual orientation, conduct, practices or relationships" to be the basis for a claim of "minority status, quota preferences, protected status or claim of discrimination." The amendment invalidated certain local ordinances prohibiting discrimination on the basis of sexual orientation. The Colorado Supreme Court held that any constitutional amendment that infringes on "the fundamental right to participate equally in the political process [by] `fencing out' an independently identifiable class of persons must be subject to strict judicial scrutiny" under the Equal Protection Clause of the United States Constitution. Evans v. Romer, 854 P.2d 1270, 1282 (Colo.1993). The Colorado Supreme Court then affirmed a later ruling that invalidated the enactment because the State failed to establish a compelling governmental interest...