Citizens for Equal Protection, Inc. v. Bruning, 4:03CV3155.

• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska
• Writing for the Court: Bataillon
• Citation: 368 F.Supp.2d 980
• Parties: CITIZENS FOR EQUAL PROTECTION, INC., a non-profit organization incorporated under the laws of Nebraska; Nebraska Advocates for Justice and Equality, Inc., a non-profit organization incorporated under the laws of Nebraska; and ACLU Nebraska, a non-profit organization incorporated under the laws of Nebraska, Plaintiffs, v. Attorney General Jon C. BRUNING, in his official capacity, and Governor Michael O. Johanns, in his official capacity, Defendants.
• Docket Number: No. 4:03CV3155.,4:03CV3155.
• Decision Date: 12 May 2005

368 F.Supp.2d 980 CITIZENS FOR EQUAL PROTECTION, INC., a non-profit organization incorporated under the laws of Nebraska; Nebraska Advocates for Justice and Equality, Inc., a non-profit organization incorporated under the laws of Nebraska; and ACLU Nebraska, a non-profit organization incorporated under the laws of Nebraska, Plaintiffs,
v.
Attorney General Jon C. BRUNING, in his official capacity, and Governor Michael O. Johanns, in his official capacity, Defendants. No. 4:03CV3155. United States District Court, D. Nebraska. May 12, 2005.

Page 981

COPYRIGHT MATERIAL OMITTED

Page 982

COPYRIGHT MATERIAL OMITTED

Page 983

COPYRIGHT MATERIAL OMITTED

Page 984

Amy A. Miller, Robert F. Bartle, Lincoln, NE, David S. Buckel, James D. Esseks, Sharon M. McGowan, Tamara Lange, New York, NY, Fred B. Chase, Dallas, TX, for Plaintiffs.

Dale A. Comer, Matthew W. McNair, Lincoln, NE, for Defendants.

MEMORANDUM AND ORDER

BATAILLON, District Judge.

This case has been submitted to the court on the Joint Stipulation of Facts and supporting evidence, Filing No. 45; affidavits,

Page 985

Filing Nos. 46, 47, 48 and 50; and the trial briefs of the parties, Filing Nos. 65, 66 and 67. This is an action for declaratory and injunctive relief for deprivation of constitutional rights brought pursuant to 42 U.S.C. § 1983. Plaintiffs allege that Article I, Section 29 of the Nebraska Constitution ("Section 29") is unconstitutional as it is (1) a denial of equal protection and is (2) a bill of attainder. Section 29 of the Nebraska Constitution provides that "[o]nly 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." Neb. CONST. art. I, § 29. Plaintiffs contend that Section 29 denies them an equal opportunity to convince members of the Nebraska Unicameral that same-sex relationships deserve some of the legal protections afforded to other relationships.¹ Filing No. 1, ¶ 4. Plaintiffs ask the court to (1) declare that Section 29 violates the United States Constitution; (2) declare Section 29 a bill of attainder in violation of Article I, Section 10 of the United States Constitution; (3) strike and permanently enjoin its enforcement of Section 29; and (4) award reasonable attorney fees and costs pursuant to 42 U.S.C. § 1988. After careful consideration of the record, briefs, and the relevant case law, the court finds that Article I, Section 29 of the Nebraska Constitution violates the Constitution of the United States.

I. Facts

The parties have filed a Joint Stipulation of Facts, with attached Exhibits 1 through 37. Filing No. 45. The parties stipulate, in relevant part, that plaintiffs Citizens for Equal Protection, Inc. ("CFEP") and Nebraska Advocates for Justice and Equality ("NAJE") are non-profit corporations, incorporated under Nebraska law in 1993 and 2000, respectively. CFEP's mission is to eliminate discrimination based on sexual orientation through legislation and education. NAJE also works to end discrimination and has lobbied against legislation that it believes discriminates based on sexual orientation or gender identity and in favor of legislation that it believes protects the civil and political rights of lesbian, gay, bisexual and transgender Nebraskans. Plaintiff ACLU Nebraska is also a non-profit corporation, incorporated under Nebraska law. Its purpose is to defend civil liberties and its work includes advancing the civil liberties of lesbian, gay and bisexual Nebraskans by lobbying in support of bills that seek to extend legal protections to lesbian, gay and bisexual people and lobbying against legislative efforts it believes discriminate on the basis of sexual orientation. All three plaintiff organizations have lesbian, gay and bisexual members, including public employees.

Defendant Jon C. Bruning is the Attorney General of the State of Nebraska. The Attorney General is charged with enforcing the laws of the State of Nebraska (the defendants hereafter are collectively referred to as "the State"). The Attorney General is also charged, under Neb.Rev.Stat. § 84-205(4)(1999), with giving "his or her opinion in writing upon all questions of law submitted to him or her" by various state officers, including the executive officers and members of the legislature. Defendant Michael O. Johanns was at all material times the Governor of the State of

Page 986

Nebraska.² The governor is charged with executing the laws of the State. The parties stipulate that both defendants are sued in their official capacities only and were acting under color of state law at all times relevant to this action.

The citizens of Nebraska added Section 29 to the Nebraska Constitution through the initiative petition process. The proposed amendment that became Section 29 was known as Initiative Measure 416 during the petition drive. The Nebraska initiative petition process is set out in Art. III, §§ 2 and 4 of the Nebraska Constitution, and in the relevant portions of the Nebraska Election Act, Neb.Rev.Stat. §§ 32-101 et seq. Under that process, sponsors of an initiative measure circulate petitions for signature by registered voters and, if a sufficient number of registered voters sign those petitions, a measure is placed on the ballot. Once a proposal is placed on the ballot, it is subject to majority vote to determine whether it will be adopted or rejected. In 2000, two officially-recognized ballot-issue committees, as well as other groups, promoted passage of Measure 416 to Nebraska voters. Those committees were the Defense of Marriage Amendment Committee ("DOMA Committee") and the Nebraska Coalition for the Protection of Marriage ("NCPM Committee"), both of whom met the threshold for reporting under the Nebraska Accountability and Disclosure statutes and filed documents with the Nebraska Accountability and Disclosure Commission. See Exhibit (hereinafter "Ex.") 1, Ex. 2, and Exs. 7 through 12.³

Both committees created materials, including television and radio advertisements, to support their efforts to encourage adoption of the amendment. See Exs. 3 through 6, ¶¶ 13 through 15. In those materials, proponents of the measure asked the voters to support the amendment in order to further define marriage, particularly since the Unicameral had been unable to pass such legislation. See Exs. 3, 4, 5 and 6. NCPM also sponsored a mailing to selected Nebraska voters prior to the November 2000 election outlining the reasons for Initiative 416, and purchased advertising space in the Omaha World-Herald using the text of that mailing. Ex. 16. The committees stated that the objective of Measure 416 was to preserve the union between a man and a woman, and also stated the measure was necessary because other states had taken action to extend marital rights to same-sex couples. See Exs. 17, 18, 19, 20 and 21. The record includes several newspaper articles related to Measure 416. See Exs. 22-26.

The parties have also stipulated that approximately 105,000 valid signatures of registered voters were required to place the proposed constitutional amendment on the 2000 Nebraska General Election ballot and that volunteer circulators gathered and submitted more than that number of signatures. Between fifty percent and seventy-five percent of those petition signatures were gathered by volunteers associated with the Church of Jesus Christ of Latter Day Saints. The remainder of the

Page 987

signatures were gathered by various volunteers and volunteer groups coordinated by the DOMA Committee.

Nebraska voters adopted Measure 416 as a part of the Nebraska Constitution in the General Election held on November 7, 2000. The measure received majority approval in all 93 Nebraska counties. The total final vote on Measure 416 was 477,571 in favor (70.1%), and 203,667 against (29.9%). The measure, now codified at Art. I, § 29 of the Nebraska Constitution, became law on November 7, 2000, when it received the required number of votes and became effective on December 7, 2000, when Governor Johanns signed the Proclamation of Adoption.

Stipulated evidence further shows that state Senator Nancy Thompson introduced Legislative Bill ("LB") 671 in the Nebraska Legislature on January 14, 2003. That bill would have provided the domestic partner of a deceased person with the power and authority to make an anatomical gift of and/or to dispose of the deceased's remains.⁴ Ex. 27. The bill was referred to the Health and Human Services Committee of the Nebraska Legislature on January 24, 2003. Senator Thompson requested an opinion of the Nebraska Attorney General on the constitutionality of the proposed legislation in light of Section 29. The Attorney General responded to Senator Thompson's request and issued Op. Att'y Gen. No. 03004 (2003). Ex. 28.

In the opinion, the Attorney General answered the following question: "If the Legislature Were to Grant Rights to A Domestic Partner to Donate Organs of a Decedent and Control the Disposition of a Decedent's Remains, Would Such Law Be Constitutional?" Id. at 1. The Attorney General first noted that the Nebraska Constitution had been amended to include Initiative Measure 416 "[i]n response to concerns that a union of partners of the same sex may be considered lawful marriage in certain states and that the Full Faith and Credit provision of the U.S. Constitution may make it incumbent upon Nebraska to recognize it as a lawful marriage if the partners were to move to this state," and to "make it clear that only marriage between a man and a woman is to be valid or recognized in this state."⁵ Id. The Attorney General then noted that under the second sentence of the amendment, "no legal recognition is to be accorded to the union of two persons of the same sex, regardless of whether one uses the word `marriage' or attaches some other label to the relationship, such...