368 F.Supp.2d 980 United States District Court,
D. Nebraska.
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. | May 12, 2005.
Attorneys and Law Firms
*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.
Opinion
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, *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 samesex 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 *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. 2226.
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 *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 as ‘civil union’ or ‘domestic partnership.’ ” Id. at 2. After outlining the provisions of the proposed legislation, the Attorney General concluded that the proposed legislation would amend Nebraska law and the Uniform Anatomical Gift Act to give a domestic partner the same right as a surviving spouse to control and direct the disposition of a decedent’s remains-a right given priority over the rights of decedent’s parents *988 and children that has traditionally been reserved to the surviving spouse. Id. The Attorney General concluded that “such legislation would create new rights which spring from recognition of a domestic partnership; a partnership which could comprise same sex couples.” Id. at 2. Because “the rights being created are placed on the same plane as rights which arise as a consequence of the marital relationship,” the Attorney General found that the proposed legislation “would be giving legal effect to a same sex relationship, thereby validating or recognizing it,” which would run counter to Section 29. Id. at 2-3 (emphasis added). The proposed legislation was not advanced out of the Health and Human Services Committee, and was on General File in the Nebraska Legislature when the 2004 session ended.6

Donna Colley and Margaux Towne-Colley, who are members of the plaintiff organizations, wrote to thenGovernor Michael Johanns on October 30, 2002, expressing concern about health insurance, adoption, and inheritance issues in connection with the couple’s move to Nebraska from Vermont, where their relationship had been recognized, and the subsequent birth of a child in Nebraska. See Ex. 29. Governor Johanns responded:

This letter is to respond to your

faxed letter to me about your

personal

circumstances,

particularly with the birth of [the

child]. I do not doubt your sincerity

or the depth of your concern for

[the child], since your plans for his

birth did not work out. However, I

am sure you are aware of my

beliefs about the sanctity of

marriage, and that I supported the

constitutional

amendment

providing that Nebraska would not

give legal recognition to civil

unions or domestic partnerships or

other same-sex relationships. With

the adoption of that constitutional

amendment, I see no resolution for

you of the issues you discussed.

Ex. 30 (emphasis added).

The evidence also shows that the Nebraska Legislature has adopted legislation in the past, notwithstanding issuance of an Attorney General Opinion that questioned the constitutionality of the legislation. See Exs. 31 and 32 (noting that a bill regarding future inmate appropriations passed even though the Attorney General opined that it would be unconstitutional). Correspondingly, the evidence shows that the Nebraska Legislature has also abandoned certain legislation after issuance of Attorney General opinions that questioned the constitutionality of the legislation. See Exs. 33 and 34 (regarding position of Attorney General pertaining to creation of the position of “Counsel to the Legislature” in a bill as an unconstitutional violation of the separation of powers clause). The bill did not pass into law and no similar law has been passed since the issuance of the Nebraska Attorney General opinion.
Several members of plaintiff organizations have submitted affidavits showing that Section 29 has inhibited them from lobbying for extension of rights to gay and lesbian couples and has interfered with their ability to provide for themselves and their families. See Exs. 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 and 50.7 The evidence shows that plaintiffs’ members *989 for the most part are gay or lesbian couples, most employed as professionals, who are in long-term committed relationships, many of whom have and are raising children. See id.
II. Discussion
A. The Constitutional Deprivation-First Amendment [1] The threshold issue in the court’s constitutional analysis is the identification of the right that is said to have been infringed by the enactment of Section 29. Plaintiffs assert that Section 29 is unconstitutional because “it erects a discriminatory barrier to advocacy for any form of government recognition” of committed samesex relationships. Filing No. 1. Plaintiffs also assert that the amendment amounts to an unconstitutional bill of attainder, inflicting punishment by excluding “gay people from the normal processes by which other Nebraskans can advocate to protect their families,” which is akin to a political disenfranchisement or disqualification. See id. However characterized, the court finds that the deprivation occasioned by the passage of Section 29 is the deprivation of the right to associational freedom protected by the First Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution and the right to petition the government for redress of grievances, which encompasses the right to participate in the political

process, also protected by the First Amendment. The elucidation of the constitutional deprivation at issue is preliminary to any finding that Section 29 violates either the Equal Protection Clause or a finding that Section 29 amounts to an unconstitutional bill of attainder and is, thus, properly before the court.8
[2] The First Amendment, applicable to the states through the Fourteenth Amendment, provides that “Congress shall *990 make no law ... abridging the freedom of speech ... or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. CONST. amend I. “The hallmark of the protection of free speech is to allow ‘free trade in ideas’-even ideas that the overwhelming majority of people might find distasteful or discomforting.” Virginia v. Black, 538 U.S. 343, 357, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (quoting Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting)). An individual’s interest in self-expression is a concern of the First Amendment separate from the concern for open and informed discussion, although the two often converge. First Nat’l Bank of Boston v. Belloti, 435 U.S. 765, 776 n. 12, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) (identifying “the inherent worth of the speech in terms of its capacity for informing the public” as “more than self-expression; it is the essence of self-government,” and noting “selfgovernment suffers when those in power suppress competing views on public issues ‘from diverse and antagonistic sources.’ ”). The First Amendment “presupposes that the freedom to speak one’s mind is not only an aspect of individual liberty-and thus a good unto itself-but also is essential to the common quest for the truth and the vitality of society as a whole.” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 503-04, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984); see also Bellotti, 435 U.S. at 776, 98 S.Ct. 1407 (noting that the Constitution often protects interests broader than those of the party seeking their vindication and that the First Amendment in particular serves important societal interests). The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Moreover, “[t]he voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation.” Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 295, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981).
[3] [4] [5] [6] The right to free speech encompasses the right to association, which is constitutionally protected in two distinct senses: freedom of expressive association and freedom of intimate association. Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 82

L.Ed.2d 462 (1984). Expressive association-the right to associate for the purpose of engaging in those activities protected by the First Amendment (speech, assembly, petition for the redress of grievances, and the exercise of religion)-is governed by First Amendment principles. Id. at 618, 104 S.Ct. 3244 (noting that “[t]he Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.”). Intimate association, characterized as “choices to enter into and maintain certain intimate human relationships” receives protection as a fundamental element of personal liberty under the Due Process Clause. Id. at 617-18, 104 S.Ct. 3244; Bellotti, 435 U.S. at 778, 98 S.Ct. 1407 (stating “the liberty of speech and of the press which the First Amendment guarantees against abridgment by the federal government is within the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment”).9 These two constitutionally-protected *991 freedoms can coincide particularly when the state interferes with an individual’s selection of those with whom they wish to join in a common endeavor. Roberts, 468 U.S. at 618, 104 S.Ct. 3244.
[7] [8] [9] The right to expressive association protects the vigorous advocacy of lawful ends. NAACP v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) (finding that litigation is a form of political expression-“a means for achieving the lawful objectives of equality of treatment”-that the state could not restrict under its power to regulate the legal profession). Organizational activity, whereby citizens seek through lawful means to achieve legitimate political ends, is protected as a component of this right to associate to advance beliefs and ideals. Id. at 430, 83 S.Ct. 328; see also California Democratic Party v. Jones, 530 U.S. 567, 573, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000) (stating “the First Amendment protects the freedom to join together in furtherance of common political beliefs”). Thus, the right to free speech includes the right to attempt to persuade others to change their views, and it may not be curtailed simply because the speaker’s message may be offensive to his audience. Hill v. Colorado, 530 U.S. 703, 715, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Indeed, “political belief and association constitute the core of those activities protected by the First Amendment.” Elrod v. Burns, 427 U.S. 347, 356, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion).
“An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.” Roberts, 468 U.S. at 622, 104 S.Ct. 3244; see also Berkeley, 454 U.S. at 294, 102 S.Ct. 434 (involving

ordinance placing monetary limits on contributions to ballot measures). “According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority.” Roberts, 468 U.S. at 622, 104 S.Ct. 3244; Button, 371 U.S. at 431, 83 S.Ct. 328 (finding that the activities of the NAACP are modes of expression and association protected by the First and Fourteenth Amendments); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (finding compelled disclosure of affiliation with groups engaged in advocacy a restraint on freedom of association). Thus, “implicit in the right to engage in activities protected by the First Amendment [is] a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts, 468 U.S. at 622, 104 S.Ct. 3244; NAACP v. Claiborne Hardware Co., 458 U.S. 886, 906, 911-12, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (holding that a boycott is constitutionally protected activity and that “[t]he established elements of speech, assembly, association, and petition, ‘though not identical, are inseparable,’ ” (quoting Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1945)) and are vehicles through which citizens can effect social and economic change and thereby “change a social order that had consistently treated them as second-class citizens”). See also Gay Lib v. Univ. of Missouri, 558 F.2d 848, 853 n. 9 (8th Cir.1977) (finding it inimical to First Amendment values to deny individuals “the fundamental right to meet, discuss current problems, and to advocate changes in the status quo” (quoting Gay Alliance of Students v. Matthews, 544 F.2d 162, 166 (4th Cir.1976))).
*992 [10] [11] The Constitution’s protection is not limited to direct interference with fundamental associational rights, but extends to indirect infringement of those rights. Healy v. James, 408 U.S. 169, 183, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972) (finding state university’s denial of official recognition, without justification, to an unpopular college organization burdens or abridges members’ First Amendment associational rights). Accordingly, the possible ability of a group or association to pursue goals by other means will not significantly ameliorate the disabilities imposed by a restraint on freedom of association. See id. at 182-83, 92 S.Ct. 2338; Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (stating that even if homosexuals could find some safe harbor in laws of general application, a constitutional amendment similar to that at issue herein would still impose a special disability on them).
[12] [13] Regarding freedom of intimate association, the Bill of Rights, designed to secure individual liberty, affords

the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the state. Roberts, 468 U.S. at 618, 104 S.Ct. 3244. The constitutional shelter afforded such relationships reflects the realization that “individuals draw much of their emotional enrichment from close ties with others” and “[p]rotecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one’s identity that is central to any concept of liberty.” Id. at 619, 104 S.Ct. 3244. The First Amendment protects those relationships “that by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life.” Id.; see also Board of Directors of Rotary Int’l v. Rotary Club, 481 U.S. 537, 544-45, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987). These protected relationships are “distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship” and generally “only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty.” Roberts, 468 U.S. at 620, 104 S.Ct. 3244.
[14] The intimate relationships that have been accorded full constitutional protection are marriage, the begetting and bearing of children, child-rearing and education, and cohabitation with relatives. Rotary Int’l, 481 U.S. at 545, 107 S.Ct. 1940 (1987). However, the legal status of, or state sanction upon, a relationship is not controlling. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (noting that the law has not “refused to recognize those family relationships unlegitimized by a marriage ceremony”); Levy v. Louisiana, 391 U.S. 68, 71-72, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968), and Glona v. American Guarantee & Liability Ins. Co., 391 U.S. 73, 75, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968) (holding that a state may not condition recovery for wrongful death on legitimacy and noting “the Equal Protection Clause necessarily limits the authority of a State to draw such ‘legal’ lines as it chooses”). Moreover, constitutional protection has not been limited to relationships that involve biological family members. Rotary Int’l, 481 U.S. at 545, 107 S.Ct. 1940; Smith v. Organization of Foster Families For Equality and Reform, 431 U.S. 816, 845-46, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (noting a limited liberty interest in foster family). At the unprotected end of the spectrum are *993 cases that involve business associations and encounters limited in duration and depth. See, e.g., Rotary Int’l, 481 U.S. at 546, 107 S.Ct. 1940 (holding that relationship

among Rotary Club members is not the type of intimate relationship that is constitutionally protected); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 237, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (finding that patrons of motel, which limited rental of rooms to ten hours, did not have the type of intimate relationship protected by the Constitution); City of Dallas v. Stanglin, 490 U.S. 19, 24, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (stating that dance hall patrons were not engaged in the sort of intimate or expressive association the First Amendment has been held to protect).
[15] Between the opposing poles of a marital relationship on one hand and a large business enterprise on the other, lie “a broad range of human relationships that may make greater or lesser claims to constitutional protection from particular incursions by the State.” Roberts, 468 U.S. at 620, 104 S.Ct. 3244 (noting that determination of the limits of state authority over an individual’s freedom to enter into a particular association involves “a careful assessment of where that relationship’s objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments).” See also Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (invalidating statute criminalizing sodomy on due process grounds and holding that the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting private consensual sexual behavior.)
[16] [17] A corresponding right under the First Amendment protects “the right of the people to petition the Government for a redress of grievances.” U.S. CONST. amend. I. It is recognized as one of “the most precious of the liberties safeguarded by the Bill of Rights.” United Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 222, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967). This right is similar to and frequently overlaps the other guarantees of free expression. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. at 909-12, 102 S.Ct. 3409 (a boycott is afforded First Amendment protection and stating that “free trade in ideas” means free trade in the opportunity to persuade to action). Thus, the government may not regulate political activity so as to prevent associating for “mere solicitation of governmental action with respect to the passage of laws.” Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 138, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) (finding that a violation of Sherman Anti-Trust Act cannot be premised on an invasion of the right to petition); Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 626, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) (“Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of

representative government”); Hunter v. Erickson, 393 U.S. 385, 390-91, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969) (holding that a political majority may not restructure the political process to make it more difficult for a political minority to obtain favorable government action in a race discrimination case).
[18] Claims that involve this “First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views” allege a violation of First Amendment rights. See Vieth v. Jubelirer, 541 U.S. 267, 314, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (Kennedy, J., concurring) (questioning the value of Equal Protection analysis *994 to gerrymandering cases and noting that the inquiry is not whether a generally permissible classification has been used for an impermissible purpose, but “whether the legislation burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association”); Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 222-23, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (holding that a ban on primary endorsements affects speech at the core of the electoral process and of the First Amendment freedoms); Anderson v. Celebrezze, 460 U.S. 780, 792, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) (stating that “[t]he inquiry is whether the challenged restriction unfairly or unnecessarily burdens ‘the availability of political opportunity’ ” and finding that an early filing deadline placed “a particular burden on identifiable segment of voters” and impinged “associational choices protected by the First Amendment”); Williams v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (stating “[c]ompetition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms.”). The right to petition extends to all departments of the government. California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (concluding that “it would be destructive of rights of association and of petition to hold that groups with common interests may not, without violating the antitrust laws, use the channels and procedures of state and federal agencies and courts to advocate their causes and points of view respecting resolution of their business and economic interests vis-avis their competitors”).
[19] The “fundamental right to participate equally in the political process” can be impinged by a state constitutional amendment that “alters the political process so that a targeted class is prohibited from obtaining legislative, executive, and judicial protection or redress from discrimination absent the consent of a majority of the electorate through the adoption of a constitutional

amendment.” Evans v. Romer, 854 P.2d 1270, 1282, 1285 (Colo.1993) (“Evans I” ) (noting that “[s]uch a structuring of the political process undoubtedly is contrary to the notion” that the Constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications), aff’d on other grounds, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996). Contrary to the State’s contention, the United States Supreme Court has not rejected that proposition. See Romer v. Evans, 517 U.S. 620, 626, 116 S.Ct. 1620, 134 L.Ed.2d 855.
The Supreme Court identified essentially the same constitutional injury in Romer as the Colorado Supreme Court had identified. Id. at 627-28, 116 S.Ct. 1620 (stating the “[t]he ‘ultimate effect’ of Amendment 2 is to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures” and noting that a “sweeping,” “comprehensive” and “far-reaching” “change in legal status” was effected by the law, vis-a-vis the “structure and operation of modern anti-discrimination laws” barring “homosexuals from securing protection against the injuries that these public accommodation laws address”). The court identified the injury as more than a mere deprivation of “special rights” to homosexuals, but as the withholding of the protections “taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society” and recognized the “special disability” imposed on homosexuals was that the class was “forbidden the safeguards that others enjoy or may seek *995 without constraint” in that “[t]hey can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution.” Id. at 631, 116 S.Ct. 1620. Having identified the injury, the Supreme Court found that Amendment 2 “fail[ed], even defi[ed],” the conventional inquiry of whether a law, assuming it neither burdens a fundamental right nor targets a suspect class, “bears a rational relation to some legitimate end.” Id. at 631-32, 116 S.Ct. 1620. It was, thus, not necessary for the court to engage in strict-scrutiny analysis.10
[20] [21] Identification of a First Amendment deprivation subjects the challenged enactment to examination for vagueness and overbreadth. City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). An imprecise law can be attacked for overbreadth, which permits the invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial in relation to the statute’s legitimate sweep, id., or vagueness, because the law fails

to establish standards that are sufficient to guard against the arbitrary deprivation of constitutional rights. Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).
[22] As applied to the undisputed facts of this case, the court finds that Section 29, as written and as applied, imposes significant burdens on both the expressive and intimate associational rights of plaintiffs’ members and creates a significant barrier to the plaintiffs’ right to petition or to participate in the political process. Although not central to disposition of this case, the court finds Section 29 burdens rights of intimate association. The amendment goes far beyond merely defining marriage as between a man and a woman. By its terms, Section 29 mandates that Nebraska will not recognize or give effect to “the uniting of two persons” in a same-sex relationship “similar to” marriage. This language, especially given the expansive reading it has been afforded in Nebraska, potentially prohibits or at least inhibits people, regardless of sexual preference, from entering into numerous relationships or living arrangements that could be interpreted as a same-sex relationship “similar to” marriage.11
Because the identifying incidents of marriage vary, numerous living arrangements can be interpreted as “similar to” marriage. See infra, in discussion of Equal Protection claim. Marriage cannot be identified or defined solely by sexual, procreational or financial aspects. Many social or associational arrangements run the risk of running afoul of the broad prohibitions of Section 29. Among the threatened relationships would be those of roommates, co-tenants, foster parents, and related people who share living arrangements, expenses, custody of children, or ownership of property. Many of these associational relationships are constitutionally protected at some point along the spectrum from the most hallowed and intimate *996 to the most trivial. Without determining where on this spectrum a potential domestic partnership, civil union or other “same-sex” relationship would fall, let it suffice to say that associations or living arrangements affected by Section 29 are closer to the end of the continuum that deserve Constitutional protection.12
Section 29 also interferes with individuals’ abilities or incentives to join together in pursuit of a common endeavor. Nebraska’s amendment has expansive reach. The State reads the amendment as rendering unconstitutional any proposed legislation that would elevate a same-sex relationship or agreement to the same plane as married persons. A broad range of potential legislation falls under the purview of Section 29. Proponents of legislation that would extend rights or benefits to same-sex relationships are discouraged and/or

dissuaded from enthusiastic advocacy of such goals by the State’s expressed conclusion that most such legislation would violate the Nebraska Constitution. Section 29 significantly chills the incentive to associate and to organize in pursuit of those goals. The ability of proponents to garner support and financial backing for the pursuit will necessarily be diminished by Section 29. The result of the amendment is to discourage or impair the formation of groups and/or associations to lobby for changes in legislation that would benefit same-sex couples.
Most importantly, in addition to burdening intimate and expressive associational rights, Section 29 erects significant burdens on the promotion of, or lobbying for, any legislative or governmental action that would eventually extend rights or recognition to gays and lesbians, or for that matter, would change the status quo concerning numerous applications of family law, custody, or adoption issues, thus affecting citizens other than gays or lesbians. See infra, discussion in Equal Protection part of this opinion. In its brief, the State admits that “[p]laintiffs have full access to the political process and may obtain the rights via legislation which married couples enjoy, so long as those rights are not premised on recognition of a same-sex relationship.” Filing No. 66, Defs.’ Trial Brief at 11. The fallacy of the State’s circular logic is apparent. In making this statement, the State concedes that full access to the political process and enjoyment of rights of married couples will be forbidden if premised on the recognition of a same-sex relationship. The evidence shows that the State regards any proposed legislation that would elevate a same-sex couple to the “same plane” as a married couple amounts to “a recognition” of the same-sex relationship. Marital status confers many rights that single people-gay or straight, parents or not-do not possess. Notwithstanding policies preferring marriage, there are or may be legitimate reasons, consistent with the goals of promoting stable family relationships and protecting children, for extending some rights or obligations traditionally linked to marriage to other relationships. A blanket prospective prohibition on any type of legal recognition of a same-sex relationship not only denies the benefits of favorable legislation to these groups, it prohibits them from even asking for such benefits. The State’s admissions establish that legislation seeking to extend any benefits *997 once incident to or dependent on the marital relationship to a same-sex couple would violate Section 29. Indeed, enforcement of Section 29, as the State interprets the provision, could void numerous existing contracts, labor agreements and corporate policies that extend to same-sex partners any benefits once offered only to spouses. This is tantamount to denial of access to the means to effect any sort of social or political change. The knowledge that any

such proposed legislation violates the Nebraska Constitution chills or inhibits advocacy of that legislation, as well as impinging on freedom to join together in pursuit of those ends. Proponents of any legislation that would enhance same-sex partner’s rights (including awarding benefits, allowing adoption, etc.) must surmount the hurdle of passing a constitutional amendment. This creates a barrier to participation in the political process that no minority population is ever likely to surmount.
B. Equal Protection [23] [24] [25] [26] [27] Plaintiffs contend that Section 29 violates their Fourteenth Amendment rights to Equal Protection and Due Process.13 Plaintiffs do not seek any determination of the validity of the State of Nebraska’s definition of marriage as a relationship between a man and a woman.14 Plaintiffs seek the ability to advocate for *998 the extension of some rights historically associated with marriage.15
[28] [29] The institution of marriage is difficult to define and/or describe. See 1 Homer H. Clark, Jr., The Law of Domestic Relations in the United States § 2.1 at 81 (2d ed.1988) (“[c]ontemporary marriage cannot be legally defined any more precisely *999 than as some sort of relationship between two individuals, of indeterminate duration, involving some kind of sexual conduct, entailing vague mutual property and support obligations, a relationship which may be formed by consent of both parties and dissolved at the will of either”). That said, certain elements generally serve to identify a civil marital relationship. Civil marriage is a creature of statute. See, e.g., Neb.Rev.Stat. § 42-101; but see Edmunds v. Edwards, 205 Neb. 255, 287 N.W.2d 420, 425 (1980) (acknowledging that, although by statute marriage is a civil contract, it does not resemble any other contract with which the courts have to deal; “[w]hat persons establish by entering into matrimony, is not a contractual relation, but a social status,” (quoting University of Michigan v. McGuckin, 64 Neb. 300, 89 N.W. 778, 779 (1902). Although it is a civil contract, the consent of the parties alone cannot establish a marriage; the consent of the state is also required. Edmunds, 287 N.W.2d at 425. The state’s interests in marriage and family life are “ ‘rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society.’ ” Knight v. Superior Court, 128 Cal.App.4th 14, 26 Cal.Rptr.3d 687, 698 (2005) (finding that statutory provision of domestic partner status does not contravene definition of marriage as a contract between a man and a woman) (quoting Laws v. Griep, 332 N.W.2d 339, 341 (Iowa 1983)).

Plaintiffs seek only “a level playing field” that would permit them to access the Nebraska Unicameral to lobby for legal protections that have already been permitted in other states.16 Plaintiffs assert that *1000 they seek only to advocate to members of the Unicameral for passage of legislation that would make domestic partners responsible for each others’ living expenses; allow a partner hospital visitation; provide for a partner to make decisions regarding health care, organ donations and funeral arrangements; permit bereavement leave; permit private employer benefits; allow survivorship, intestacy and elective share; and permit same-sex couples to adopt children. Filing No. 45, Ex. 27. As an example, plaintiffs note that Iowa provides health insurance to domestic partners of state employees, and under Section 29, as interpreted by the Attorney General, Nebraska employers will question the validity of such benefits and whether they can be offered in Nebraska.17
As its objective for the amendment, the State contends that the purpose of Section 29 is to preserve marriage as the union between a man and a woman, to promote procreation and family life, and to ensure that Nebraskans are not forced to recognize same-sex marriages from other jurisdictions. See Exs. 3 and 4 (preservation of traditional marriage); Ex. 6 (to stop potential challenges to Nebraska marriage laws from those whose same-sex unions have been legitimatized in other states); Exs. 15, 17, 19, 21, 203 and 204 (to define marriage as between a man and a woman). Interestingly, although procreation is argued to be the primary rationale for Section 29, few of these exhibits mention procreation as a primary reason for passage of this amendment.
Defendants principally argue that
there is no civil right to win a political battle. 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 ... nor do they have a constitutional right to overturn a political defeat through the federal courts.
Filing No. 66, Defs.’ Trial Brief at 1. Defendants further argue: “Plaintiffs started the political fight that resulted in adoption of Section 29. They began participating in the political process by advocating for homosexual rights before anyone began talking about amending the Nebraska Constitution to protect marriage.” Id. at 3. Defendants contend that this is purely a political, not a constitutional issue. The State’s primary contention is that the citizens of the State of Nebraska have a right to define

marriage as they see fit.18
*1001 [30] [31] [32] In general, the Fourteenth Amendment to the United States Constitution provides that no person shall be denied equal protection of the laws. U.S. CONST. amend. XIV. With that said, most laws classify, in one way or another, and such classification results in a disadvantage to persons or groups. Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 271-272, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’ ” Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) (quoting Yick Wo v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)). Consequently, a law that neither burdens a fundamental right nor targets a suspect class will be upheld as long as the classification bears a reasonable relation to a legitimate legislative end.19 Heller v. Doe, 509 U.S. 312, 319-320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). Further, the fit between the law and its purpose need not be a perfect one. Id. at 321, 113 S.Ct. 2637.
The plaintiffs rely on Romer, 517 U.S. 620, 116 S.Ct. 1620, in support of their contention that Section 29 is a denial of equal protection. In Romer, Colorado voters adopted a statewide referendum to the Colorado state constitution, known as “Amendment 2,” that precluded all legislative, judicial, executive, and local action that would protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” Id. The Supreme Court invalidated Colorado’s constitutional amendment, finding that it imposed a broad disability on homosexuals, and no others, by prohibiting them from seeking or receiving specific legal protections without a legitimate state objective. Id. at 627, 116 S.Ct. 1620. The Court found that denial of the right to obtain specific protections from the law is a “denial of equal protection in the most literal sense.” Id. at 621, 116 S.Ct. 1620.
The Court determined that the amendment was both too narrow and too broad. Id. at 633, 116 S.Ct. 1620. It found that the breadth of the amendment was so far removed from the professed justifications for the amendment that it raised the “inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Id. at 634-35, 116 S.Ct. 1620; see also Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973) (noting that a bare desire to harm a politically unpopular group can never constitute a legitimate governmental interest). As a result of the amendment, the Court found that “[h]omosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres.” Romer, 517 U.S. at 627, 116 S.Ct.

1620. The Court admonished:
We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.
Id. at 635, 116 S.Ct. 1620 (also noting “that Amendment 2 classifies homosexuals not *1002 to further a proper legislative end but to make them unequal to everyone else”). The Court further concluded that laws of general application did not provide a sufficient safe harbor for this class of persons. Id. at 631, 116 S.Ct. 1620 (stating “[h]omosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State’s view, by trying to pass helpful laws of general applicability”).
The court finds that Section 29 is indistinguishable from the Colorado constitutional amendment at issue in Romer. Although not mentioned by name, the State has focused primarily on the same class of its citizens as did Colorado. Through Section 29, the State of Nebraska attempts to limit the rights of that same class to obtain legal protections for themselves or their children in a “samesex” relationship “similar to” marriage. Ex. 28. Like the amendment at issue in Romer, Section 29 attempts to impose a broad disability on a single group. Also, as in Romer, the lack of connection between the reach of the amendment and its purported purpose is so attenuated that it provides evidence that Section 29 has no rational relationship to any legitimate state interest.
The reach of Section 29 is at once too broad and too narrow to satisfy its purported purpose of defining marriage, preserving marriage, or fostering procreation and family life. It is too narrow in that it does not address other potential threats to the institution of marriage, such as divorce. It is too broad in that it reaches not only samesex “marriages,” but many other legitimate associations, arrangements, contracts, benefits and policies. See First Amendment discussion, supra. The language of Section 29, stating that “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,” prohibits a class of citizens from accessing the Nebraska Unicameral to advocate for the full array of benefits afforded to the other citizens of the State of Nebraska. “[T]he principle that government and each of its parts remain open on impartial terms to all who seek its assistance” is “[c]entral both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection.” Romer, 517 U.S. at 633, 116 S.Ct. 1620.
Moreover, the court finds that Section 29 was designed against the class it affects, making it status-based. See Romer, 517 U.S. at 635, 116 S.Ct. 1620. Section 29 goes so far beyond defining marriage that the court can only conclude that the intent and purpose of the amendment is based on animus against this class. See, e.g., id. “The obvious animus of the part affects the whole.” See Akhil Reed Amar, Attainder and Amendment 2: Romer’s Rightness, 95 Mich. L.Rev. 203, 220 (1996). Although Section 29 does not identify “gay, lesbian and homosexual” couples by name as the amendment did in the Romer case, it is clear that the purpose of Section 29 is to deny access to the legislative process by this group of citizens (or by people who would lobby on their behalf). The evidence shows that the intention of Section 29 is to make this class of people unequal, thereby disadvantaging a group, a purpose that violates the Equal Protection Clause of the United States Constitution.20 Id. at 635, 116 S.Ct. 1620 (noting “[a] State cannot so deem a class of persons a stranger to its laws”).
*1003 The court finds Section 29 is a denial of access to one of our most fundamental sources of protection, the government. Such a broad exclusion from “an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society” is “itself a denial of equal protection in the literal sense.” Id. at 631, 633, 116 S.Ct. 1620. “When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group ... [the injury] is the denial of equal treatment resulting from the imposition of the barrier....” Northeastern Fla. Chapter v. City of Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). It is this “inability to compete on an equal footing” that violates the Equal Protection Clause. Id. Individuals must be able to be free of undue government interference, and must be able to participate equally in the political process.
The State contends that Romer is distinguishable because the Colorado amendment operated to nullify or change existing ordinances while Section 29 “merely [makes] the historical, pre-existing legal status of same-sex couples a part of the Nebraska Constitution.” The State further distinguishes Romer because the Colorado amendment was a sweeping and broad constitutional amendment,

while Section 29 is narrow and deals only with “marriage.” These contentions lack merit. The troubling aspect of the amendment at issue in Romer was not its retrospective application to existing ordinances, but its prospective effect. See Romer, 517 U.S. at 631, 116 S.Ct. 1620 (noting the “special disability” imposed on homosexuals was forbidding them the safeguards that others may seek). As discussed earlier in this opinion, the sweep of Section 29 reaches to issues beyond marriage-to existing contracts, regulations, and benefits that may be conditioned upon a civil union or domestic partnership (i.e., medical leave act, adoption, insurance benefits, and so forth). In this case, the plaintiffs have not only been denied any potential benefits premised on a same-sex relationship, they have been prohibited from seeking those benefits.
The State’s focus on the political nature of this case misses the mark. 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. As discussed herein, Section 29 goes beyond a mere definition of marriage. Plaintiffs are denied access to the legislative process that is afforded to all citizens of the State of Nebraska. As previously set forth, the Nebraska Attorney General interprets Section 29 to mean that any proposed legislation that would give rights to domestic partners would violate Section 29. Ex. 28. Thus, Section 29 makes it more difficult for this group, a minority, to enact favorable legislation.
The State contends that a majority of Nebraska citizens have decided that Section 29 is the will of the people. In most instances, the popular vote carries much weight and should be afforded great deference. However, “[o]ne’s right to life, liberty, and property ... and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Further, “[a] citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” Lucas v. Forty-Fourth Gen. Assembly of Colo., 377 U.S. 713, 736, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964).
*1004 “[The framers of the Bill of Rights] knew times can blind us to certain truths and later generations can see the laws once thought necessary and proper in fact serve only to oppress.” Lawrence v. Texas, 539 U.S. at 579, 123 S.Ct. 2472. “[I]f the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare congressional desire to harm a

politically unpopular group cannot constitute a legitimate governmental interest.” Dep’t. of Agriculture v. Moreno, 413 U.S. at 534, 93 S.Ct. 2821. The court finds that Section 29 inflicts “immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it.” Romer, 517 U.S. at 635, 116 S.Ct. 1620.
The court also finds that even if the goal of preservation of the traditional definition of marriage is a worthy and legitimate goal, there is an inadequate fit between that goal and the breadth of Section 29. The State may have a “societal interest in ‘providing the institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society’ ” and promoting family stability that could be satisfied by “expanding the rights and creating responsibilities of registered domestic partners” to further the state’s “interests in promoting family relationships and protecting family members....” Knight v. Superior Court, 26 Cal.Rptr.3d at 698 (quoting Laws v. Griep, 332 N.W.2d 339, 341 (Iowa 1983)). A total prohibition on any future establishment or recognition of domestic partnerships, civil unions, or undefined relationships “similar to” marriage does not advance this goal and may, in fact, prevent it. In other words, preserving the traditional definition of marriage as a relationship involving a man and a woman, and an eventual recognition of expanded rights in the nature of those extended in other states to domestic partners or civil unions are not mutually exclusive.
“The breadth of the amendment is so far removed from these particular justifications” that the court finds it impossible to credit them. Romer, 517 U.S. at 635, 116 S.Ct. 1620. Section 29 prohibits any recognition of a “domestic partnership,” “civil union,” or “same-sex relationship.” By its terms, Section 29 prohibits contracts, benefits and arrangements that already receive recognition in various forms in Nebraska.21 Under Nebraska law, “domestic *1005 partnership” is a term of art, given a technical meaning in the Uniform Partnership Act, Mergers and Acquisitions, Neb.Rev.Stat. § 67-451(2). “Domestic” in relation to “partnership” is defined as a business entity formed in this state. See, for example, Neb.Rev.Stat. §§ 21-199; 21-20, 109; 21-2603; 21-2652; 25-530.08; 44-1802; 59-1401; 67-233; 67-235; 67-248.0. Accordingly, a domestic limited partnership composed of same-sex partners as defined in the Partnership Act could run afoul of Section 29 as it is written. “Union” is defined as “an unincorporated association of persons for a common purpose.” Black’s Law Dictionary at 1532 (6th ed.1990). Section 29 could affect the ability of private parties to make contracts, such as real estate transactions, prenuptial agreements and business agreements in

Nebraska. See, e.g., Jill Schachner Chanen, Marriage Law Could Reach Contracts, 3 No. 28 A.B.A. J. E-Report (July 16, 2004); Christopher Rizzo, Banning State Recognition of Same-Sex Relationships: Constitutional Implications of Nebraska’s Initiative 416, 11 J.L. & Pol’y 1 at 57-58.
The court envisions many situations involving “civil unions” that could run afoul of Section 29. For example, Section 29 could render a lease agreement involving two same-sex persons who share an apartment (traditionally known as “roommates”) invalid, depending on the interpretation of “similar same-sex relationship.” Without governmental inquiry into the intimate sexual practices of its citizens, there is simply no way for the State of Nebraska to know whether, or not, a relationship or living arrangement is in the nature of, or similar to, a marital relationship. See also First Amendment discussion, supra. Accordingly, the court finds that Section 29 violates the Equal Protection Clause of the Constitution of the United States. See Romer v. Evans, 517 U.S. at 620, 116 S.Ct. 1620.
C. Bill of Attainder22 [33] Plaintiffs also allege that Section 29 is a bill of attainder. Plaintiffs argue that Section 29 violates the Bill of Attainder Clause by singling out gays and lesbians for legislative punishment. The court previously found that plaintiffs’ complaint had adequately stated a claim for the violation. Citizens for Equal Protection v. Bruning, 290 F.Supp.2d 1004, 1008-1011 (D.Neb.2003). After review of the record, in particular Exs. 27, 28, 29 and 30, and Affidavit Exs. 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 and 50, the court finds that plaintiffs have shown that Section 29 is an unconstitutional bill of attainder. The analysis and reasoning in the court’s previous Memorandum and Order remains applicable and is incorporated herein.
[34] [35] Article I, section 9 of the Constitution provides that “[n]o Bill of Attainder ... shall be passed.” U.S. CONST. art. I, § 9, cl. 3. This provision prohibits Congress from enacting “a law that legislatively determines guilt and inflicts punishment upon an identifiable individual *1006 without provision of the protections of a judicial trial.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). To be considered a bill of attainder, a legislative act must (1) apply to named individuals or easily ascertainable members of a group, (2) inflict punishment, and (3) be without judicial trial. United States v. Lovett, 328 U.S. 303, 315, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). The Bill of Attainder Clause is “to be read in light of the evil the Framers had sought to bar: legislative punishment, of any

form or severity, of specifically designated persons or groups.” United States v. Brown, 381 U.S. 437, 447, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965). See also Amar, supra at 203-235 (an historical overview of Bill of Attainder as it relates to Equal Protection Clause and Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996)) (“Without the nonattainder principle, the legislature would simply single out its enemies-or the politically unpopular-and condemn them for who they are....”). Id. at 210. The law “is an attainder because, despite its dishonest protestation, it fails the requisite test of generality and prospectivity. It makes it a capital crime to be who I am. Put another way, it wrongly designates criminals rather than crimes.” Id. at 211.
[36] The legislative act should either name persons to be punished or describe them in terms of conduct that operates only as a designation of particular persons. Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 847, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984) (applied to group of people who failed to register for the draft). This specificity requirement is met when the law applies to “easily ascertainable members of a group.” Brown, 381 U.S. at 448-49, 461, 85 S.Ct. 1707 (also noting that historically it was not that unusual for the English bills of attainder “to inflict their deprivations upon relatively large groups of people, sometimes by description rather than name”). “One century ago, the first Justice Harlan admonished this Court that the Constitution ‘neither knows nor tolerates classes among citizens.’ ” Romer, 517 U.S. at 623, 116 S.Ct. 1620, quoting Plessy v. Ferguson, 163 U.S. 537, 559, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) (Harlan, J., dissenting).
In the present case, the court finds that Section 29 both names specific groups and describes them in terms of their conduct. By its terms, Section 29 targets the specific group of people who have entered into, will enter into, or seek to enter into “civil unions” and “domestic partnerships” and describes the group’s conduct as “the uniting of two persons of the same sex.” Consequently, the court concludes that plaintiffs have shown Section 29 applies to an easily ascertainable group.
There is no dispute that Section 29 operates without judicial trial before preventing the legal recognition of same-sex relationships. All parties appear to concede this issue, and the court concludes that this requirement has likewise been satisfied.
[37] The determinative factor in this case is whether Section 29 can be seen to inflict punishment. Plaintiffs contend that Section 29 effectively disenfranchises lesbian, gay and bisexual people and their supporters as they can no longer petition their representatives and city

and local governments for legislative changes that would protect their relationships, agreements, and interests. Plaintiffs argue that this type of disenfranchisement is the equivalent of punishment. In deciding whether a legislative act inflicts punishment, the court conducts three necessary inquiries: (1) whether the challenged legislation falls within the historical meaning of legislative punishment, (2) whether the statute can be said to further nonpunitive legislative purposes, and (3) whether the legislative record *1007 shows a congressional intent to punish. Selective Serv. Sys., 468 U.S. at 852, 104 S.Ct. 3348; Planned Parenthood v. Dempsey, 167 F.3d 458, 465 (8th Cir.1999). Historically, bills of attainder imposed the death penalty, but the concept has been expanded to include lesser penalties such as “legislative bars to participation by individuals or groups in specific employment or professions.” Selective Serv. Sys., 468 U.S. at 852, 104 S.Ct. 3348.; See also Brown, 381 U.S. 437, 85 S.Ct. 1707 (involving Communist Party members barred from labor union); United States v. Lovett, 328 U.S. 303, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946) (involving salary cuts for three government employees); Cummings v. Missouri, 4 Wall. 277, 71 U.S. 277, 4 Wall. 277 (1866) (involving disqualification of priest from the clergy); and Ex Parte Garland, 4 Wall. 333, 71 U.S. 333, 18 L.Ed. 366 (1866) (involving lawyers barred from practice of law).
One type of forbidden punishment is “ ‘the doctrine of disqualification, disenfranchisement, and banishment by the acts of the legislature.’ ” Brown, 381 U.S. at 444, 85 S.Ct. 1707, quoting III (John C.) Hamilton, History of the Republic of the United States, p. 34 (1859) (quoting Alexander Hamilton. “[I]f the legislature can disenfranchise any number of citizens at pleasure by general descriptions, it may soon confine all the votes to a small number of partisans, and establish an aristocracy or oligarchy....”). Id.
[38] In this way a legislative act that singles out a group and restricts its ability to effect political change amounts to punishment and can be a bill of attainder. See Brown, 381 U.S. at 448, 85 S.Ct. 1707. The court finds that Section 29 is directed at gay, lesbian, bisexual and transsexual people and is intended to prohibit their political ability to effectuate changes opposed by the majority. See id. at 442, 85 S.Ct. 1707. Section 29 operates as a legislative bar for these specified groups. Accordingly, the court finds that the challenged legislation falls within the historical meaning of the term punishment.
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-byemployer, or legislative level rather than on a state-wide voter initiative level.” Filing No. 66, Defs.’ Trial Brief at 1. “[T]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.
Importantly, prior to the enactment of Section 29, plaintiffs had the right to freely *1008 access and use the political process, in particular, the legislature. As previously discussed, the court finds that Section 29 inhibits government employers from offering benefits to certain employees and inhibits plaintiffs from advocating or lobbying for legislation that would extend any protections to same-sex couples. The evidence supports plaintiffs’ contention that the adoption of Section 29 was motivated, to some extent, by either irrational fear of or animus toward gays and lesbians. “[T]he vice of attainder is that the legislature has decided for itself that certain persons possess certain characteristics and are therefore deserving of sanction ....” Brown, 381 U.S. at 449 n. 23, 85 S.Ct. 1707. The court finds that the principles announced in Brown are applicable to Section 29, because plaintiffs have shown that Section 29 is intended to deny access to all levels of the government to anyone who advocates for extension of benefits and protections to same-sex couples.
The court finds the effect of Section 29 amounts to punishment. Legislation that “identifies persons by a single trait and then denies them protection across the board,” resulting in “disqualification of a class of persons from the right to seek specific protections from the law is unprecedented....” Romer, 517 U.S. at 633, 116 S.Ct.

1620. 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.”23 Id. Such laws “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” Id. at 634, 116 S.Ct. 1620. 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.” Amar, supra at 222.
Section 29 is distinguishable from statutes that serve nonpunitive purposes and are thus valid. See, e.g., Dempsey, 167 F.3d at 465 (removal of funding for abortion services deemed to support nonpunitive purpose of removing State’s approval from abortion services); Selective Service System, 468 U.S. at 858-59, 104 S.Ct. 3348 (denial of financial aid to males who would not register for draft not punishment where goal was to make males register); and United States v. O’Brien, 391 U.S. 367, 385-86, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (conviction for burning Selective Service card not punitive where nonpunitive goal was to continue availability of Selective Service certificates). Section 29 does not merely withhold the benefit of marriage; it operates to prohibit persons in a same-sex relationship from working to ever obtain governmental benefits or legal recognition, a right they had before the passage of Section 29. If the purpose, as offered by the proponents of Section 29, were merely to maintain the common-law definition of marriage, there would be no need to prohibit all forms of government protection or to preclude

domestic partnerships and civil unions. The court concludes that the plaintiffs have established that Section 29 is an unconstitutional bill of attainder.
Accordingly, the court finds in favor of the plaintiffs and against the defendants. Because the plaintiffs are the prevailing parties pursuant to 42 U.S.C. § 1988, the court shall award attorney fees in this case. An Order of Judgment in conformity with this Memorandum and Order will issue this date.
*1009 THEREFORE, IT IS ORDERED that:
1. Section 29 of the Nebraska Constitution is hereby declared unconstitutional and enforcement of the same is permanently enjoined.
2. Attorney fees and costs shall be awarded to the plaintiffs as the prevailing parties in this case. The plaintiffs have thirty days from the date of this Memorandum and Order to file an appropriately supported and documented request for attorney fees. Thereafter, defendants shall have thirty days to respond to the request for attorney fees.
3. Governor Dave Heinemann is substituted as party defendant for Michael Johanns.
4. A separate judgment shall be entered herein.
	  

Footnotes

1

The plaintiffs expressly disclaim an interest in recognition of same-sex marriages, civil unions or domestic partnerships as a

remedy in this case. They seek only “a level playing field, an equal opportunity to convince the people’s elected representatives

that same-sex relationships deserve legal protection” and “equal access, not guaranteed success, in the political arena.” Filing No.

1, ¶ 4. The court is not asked to decide whether a state has the right to define marriage in the context of same-sex and opposite-sex

relationships.

2

After this lawsuit was filed, Governor Michael Johanns was appointed Secretary of Agriculture and Dave Heinemann became the

Governor of Nebraska. Pursuant to Fed.R.Civ.P. 25(d), Governor Heinemann is substituted as party defendant.

3

The parties have raised numerous objections to the admissibility of exhibits. The objections to any exhibits cited herein have been

reviewed and are overruled. The court finds the exhibits cited herein are relevant. Further, the court generally notes that the parties’

objections relate more to the weight to be afforded the evidence than to its admissibility.

4

The proposed legislation defined “domestic partner” as “a person who was in a committed relationship with the deceased person.”

Evidence to establish such a “committed relationship” included: longevity of the relationship; joint ownership of a home; joint

rental agreements; joint loan obligations; joint bank accounts, credit cards, investments, leases of vehicles; joint utilities;

designations of the other as a beneficiary, or personal representative of each other’s will; power of attorney for each other; or

evidence the other was receiving domestic partner benefits from an employer. See Ex. 27.

5

The court notes that the Full Faith and Credit Clause does not necessarily require acknowledgment of marriages that occur in other

states. See Patrick J. Borchers, The Essential Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate, 38

Creighton Law Rev. 233, 353-364 (2005).

6

The parties also stipulated that the Unicameral amended Legislative Bill 95 with Amendment No. AM1980, which provided that

“authorized persons” could provide for the dispositions of those who are deceased. See Exs. 35, 36, § 71-1339, p. 27. An

authorized person is defined as one who has an affidavit signed and sworn to by the decedent allowing for such disposition by that

person. Id. Governor Johanns approved LB 95 on May 29, 2003. Ex. 37, 2003 Neb. Laws LB 95.

7

Plaintiffs offered numerous affidavits stating that plaintiffs’ members would advocate, absent Section 29, at state, local and private

levels for rights, obligations and benefits, including (1) those who wish to advocate for passage of the Financial Responsibility and

Protection for Domestic Partners Act: Ex. 49, ¶¶ 19-20 (a homemaker); Ex. 47, ¶ 7 (a health care consultant); Ex. 46, ¶ 5 (a college

instructor); Ex. 45, ¶¶ 10-11 (a minister); Ex. 43, ¶¶ 15-16; Ex. 42, ¶¶ 8-9 (a not-for-profit director of public relations); Ex. 41 (a

software developer); Ex. 40, ¶¶ 19-22 (the ACLU); Ex. 39, ¶¶ 17-20 (the President of NAJE); (2) those who wish to advocate for

local ordinance and city changes: Ex. 39, ¶¶ 17-20; Ex. 38, ¶¶ 21-23 (CFEP); and (3) those who want to advocate for change in

laws for public and corporate employers: Ex. 44, ¶¶ 12-13; Ex. 42, ¶ 7; Ex. 41, ¶ 9 (a software developer); Ex. 48, ¶ 4 (a corporate

supervisor); Ex. 39, ¶ ¶ 17-20; and Ex. 38, ¶ 21-23 (CFEP).

8

First Amendment and Equal Protection issues are closely intertwined. Because intrusions on First Amendment rights are often

accompanied by an invidious or irrational animus against a certain group, a First Amendment infringement can also be analyzed as

the deprivation of a fundamental interest under the Equal Protection Clause when accompanied by proof of such discriminatory

animus. Notwithstanding any finding that the plaintiffs have proved the other elements of either an Equal Protection or bill of

attainder violation, a showing that Section 29 infringes First Amendment rights, standing alone, could render the provision

unconstitutional unless the State could show either that the amendment is narrowly tailored to serve a compelling state interest or “

‘closely drawn’ to match a ‘sufficiently important interest.’ ” See Federal Election Comm’n v. Beaumont, 539 U.S. 146, 161, 123

S.Ct. 2200, 156 L.Ed.2d 179 (2003) (noting the level of scrutiny is based on the importance of the “political activity at issue” to

effective speech or political association). In light of the court’s finding in the Equal Protection section of this opinion that the

defendants cannot justify the amendment under deferential “rational basis” review, the court need not discuss the more stringent

level of scrutiny. See, e.g., Romer v. Evans, 517 U.S. 620, 630, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (applying rational basis

review in circumstance similar to those presented in this case).

9

Indeed, the First Amendment’s ban on government abridgment of speech and peaceable assembly “anchors all [of the decisions

relating to a due process liberty interest] most firmly in the Constitution’s explicit text.” Laurence H. Tribe, Lawrence v. Texas:

The “Fundamental Right” That Dare Not Speak Its Name, 117 Harv. L.Rev. 1893, 1939-40 (April 2004).

10

The Court tangentially noted but did not address the issue that “at some point in the systematic administration of these [anti-

discrimination] laws, an official must determine whether homosexuality is an arbitrary and, thus, forbidden basis for decision,”

thus amounting to a decision that would “itself amount to a policy prohibiting discrimination on the basis of homosexuality” and,

thus, run afoul of the amendment. Romer v. Evans, 517 U.S. at 630, 116 S.Ct. 1620 (noting that this consequence would compound

the constitutional difficulties).

11

This analysis appears to beg the question, “What is marriage?” However, the court need not decide whether and to what extent

Nebraska can define or limit the state’s statutory definition of marriage. The court holds only that the prospective prohibition of

any relationship “similar to” marriage is both exceedingly vague and overly broad.

12

Notably, Section 29 potentially impinges other associational relationships than those that would comprise a “domestic

partnership,” “civil union” or “similar same-sex relationship” involving a gay couple. See infra in the Equal Protection discussion.

Section 29’s broad proscriptions could also interfere with or prevent arrangements between potential adoptive or foster parents and

children, related persons living together, and people sharing custody of children as well as gay individuals and people inclined to

align with them to promote changes in legislation.

13

In the context of this case, the Equal Protection allegations involve an intrusion on First Amendment rights motivated by an

invidious or irrational categorization, that is, the stifling of rights is alleged to have been discriminatory. See, e.g., Police Dep’t of

Chicago v. Mosley, 408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) (different treatment of speakers by police triggered

equal protection guarantees as well as First Amendment guarantee); Gay Alliance of Students v. Matthews, 544 F.2d at 166. As

noted, the First Amendment and Equal Protection issues are closely intertwined.

14

None of the parties have raised the issue of whether the two sentences of Section 29 could be considered separately, so as to find

Section 29’s first sentence constitutional, if its second sentence were not. Although plaintiffs’ contentions focus primarily on the

second sentence of Section 29, plaintiffs specifically argue that Section 29 in its entirety violates the Equal Protection Clause in

their complaint and throughout their trial brief in this case. See Filing No. 1, Complaint at 1; Filing No. 65, Pls.’ Trial Brief at 2.

Although the State attempts in its polemic trial brief to argue that this case is really about sentence two of Section 29, the State has

not briefed or argued that Section 29 can be severed. The court interprets the parties’ positions as an acknowledgment that Section

29 embodies one concept that cannot be severed.

The court will briefly address the severability of the provision. The issue of severability is one of state law. Leavitt v. Jane L., 518 U.S. 137, 139, 116 S.Ct. 2068, 135 L.Ed.2d 443 (1996); Dakota, Minnesota & Eastern R.R. Corp. v. South Dakota, 362 F.3d 512, 518 (8th Cir.2004). If legislation or a constitutional amendment embodies a single concept, then it is not severable. Duggan v. Beermann, 249 Neb. 411, 544 N.W.2d 68, 78 (1996) (single concept is not severable). Whether intended to be a single concept or not cannot be determined by voter intent. Id. at 78. The court should not guess voter intent. Id. at 80. See also Jaksha v. State, 241 Neb. 106, 486 N.W.2d 858, 873 (1992) (four-part test for determining severability); Omaha Nat’l Bank v. Spire, 223 Neb. 209, 389 N.W.2d 269, 279 (1986) (no way to determine intent of voters). A voter could have voted for Section 29 for a number of reasons. See Exs. 3, 4, 5, 6, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 201, 202, 203, 204 and 209 (full faith and credit issues, religion, definition of marriage, failure of Unicameral to pass legislation, fear that children will be taught that homosexuality and heterosexuality are morally equal and good, belief that homosexuality is wrong, among others). The court is unable to discern the intent of the voters. Because Section 29 contains no severability clause, the court assumes that the voters perceived it as one amendment, that is, a total concept. Moreover, the drafters of the proposed amendment considered and rejected a proposal that was limited to the first sentence. See Christopher Rizzo, Banning State Recognition of Same-sex Relationships: Constitutional Implications of Nebraska’s Initiative 416, 11 J.L. & Pol’y 1, 28 and n. 92 (2002). The court thus finds that Section 29 must be considered to be a single concept, not subject to severance. The court expresses no opinion on the constitutionality, standing alone, of the first sentence of Section 29, because that question has not been presented to the court.

15

Various state and federal laws have historically granted benefits and protections to spouses. See, e.g., Uniform Probate Code § 5-

310(a)(4) (establishing order of preference for the appointment of a guardian for an incapacitated person, with spouse ahead of

adult children or parents); Neb.Rev.Stat. § 71-1339 (providing the spouse has first right to claim a person’s remains and to make

anatomical gifts of parts of the deceased person’s body absent any express directive to the contrary); Neb.Rev.Stat. § 30-810

(authorizing wrongful death action for benefit of widow or widower); 26 U.S.C. § 6013, § 2056 (married couples can file joint tax

returns and qualify for estate tax deductions under the I.R.S.Code); 29 U.S.C. § 1002(15) (under ERISA, relative entitled to

benefits means “a spouse, ancestor, lineal descendant, or spouse of a lineal descendant”); 42 U.S.C. § 402 (married persons are

entitled to survivor’s benefits under Social Security Act); 38 U.S.C. § 1310 (spouse is entitled to veteran’s benefits); 29 U.S.C. §

2612(a)(1)(c) (Family Medical Leave Act (FMLA) requires employers to provide medical leave to care for a seriously ill spouse);

8 U.S.C. § 1151(b)(2)(A)(i) (spouses accorded preferential treatment in connection with immigration).

The law also confers benefits on married people in connection with parenting, even in the absence of a biological connection

with the child. See, e.g., 42 U.S.C. § 416(e)(2) (dependent children, including stepchildren, entitled to income benefits upon

death, retirement or disability of a parent); Neb.Rev.Stat. § 48-124 (stepchildren can be entitled to workers’ compensation and

survivor benefits); State v. Soto, 11 Neb.App. 667, 659 N.W.2d 1, 11 (2003) (same); 29 U.S.C. §§ 2611(12) & 2612(a)-(d)

(1994) (FMLA covers care of seriously ill stepchild); Neb.Rev.Stat. § 43-101 (relaxed adoption requirements and simplified

procedures to stepparents); In re Adoption of T.K.J. and K.A.K., 931 P.2d 488 (Colo.App.1996) (holding that only a person

married to a biological parent is eligible for stepparent adoption); Adoption Law and Practice § 1.05(2), § 2.10(3) (Joan H.

Hollinger ed., 1990) (same); Lori B. Andrews, Alternative Reproduction and the Law of Adoption, in Adoption Law and

Practice § 14.02 (regarding parenthood by surrogacy or artificial insemination, a spouse is generally considered a legal parent

for all purposes, while a nonspouse can achieve recognition as parent only through formal process of adoption); Unif. Parentage

Act, §§ 701-07, 9B U.L.A. 354-59 (2002) (same). Also, adoption and/or foster parenthood is prohibited to single people and

homosexuals in some jurisdictions. See Fla. Stat. ch. 63.042(3) (homosexuals); N.H.Rev.Stat. Ann. § 170-B:4 (two unmarried

people); Lofton v. Secretary of Dep’t of Children and Family Services, 358 F.3d 804 (11th Cir.2004). See also In re Adoption of

Luke, 263 Neb. 365, 640 N.W.2d 374, 382-83 (2002) (holding that a biological parent’s rights must be terminated or

relinquished in order for a child to be eligible for adoption by any adult other than a stepparent, effectively precluding adoptions

by two unmarried persons if one is a biological parent).

Notwithstanding the elevated status of marriage, several states and municipalities have extended some benefits historically

connected to the marital status to others. See, e.g., 1997 Haw.Rev.Stat. §§ 572C-4, 572C-5 (providing for registration of

“reciprocal beneficiaries”); 15 Vt. Stat. Ann. § 1201 (2000) (providing domestic partner registry); Cal. Fam.Code § 297.5

(providing domestic partner registry for same-sex couples and couples over the age of 62); Minneapolis, Minn., Ordinance 91-

08-015; Ithaca, N.Y. Mun.Code, ch 7; San Francisco, Cal., Admin. Code §§ 62.1-62.8. These laws or ordinances generally

provide for some system of registration and procedure for dissolution of the partnerships and grant rights related to hospital

visitation and medical decision-making to partners and also entitle partners of municipal employees to employment benefits. See

generally id.

16

The fifty states have various laws dealing with same-sex unions: Massachusetts permits same-sex couples to obtain marriage

licenses; five states (Connecticut, New Jersey, New Mexico, New York, and Rhode Island) and the District of Columbia have no

explicit provisions that prohibit same-sex marriages; three states have laws predating 1996 that define marriage as between a man

and a woman (Maryland, Wisconsin and Wyoming); twenty-five states have passed laws that define marriage as between a man

and a woman and will not honor marriages between same-sex couples in other jurisdictions (Alabama, Arizona, California,

Colorado, Delaware, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Maine, Minnesota, New Hampshire, North Carolina,

Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Vermont, Virginia, Washington, and West Virginia); three states

have amended their state constitutions to declare marriages to be between a man and a woman only (Nebraska, Nevada, and

Oregon); and thirteen states have amended their Constitutions and passed laws to define marriage and to refuse to honor same-sex

marriages from other jurisdictions (Alaska, Arkansas, Georgia, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, North Dakota, Ohio, Oklahoma, Oregon, and Utah). William C. Duncan, Whither Marriage in the Law? 15 Regent L.Rev. 119, 120-21, nn. 9-11 (2002-03). In the general elections in November 2004, eleven states passed state constitutional amendments: Arkansas, Georgia, Kentucky, Michigan, Mississippi, Montana, North Dakota, Ohio, Oklahoma, Oregon, and Utah. See Kavan Peterson, Fifty State Rundown on Same Sex Marriage Laws, available at http://www.stateline.org. In April 2005, the Connecticut House of Representatives passed legislation that would permit civil unions for same-sex couples but also passed language defining marriage as between one man and one woman and the bill was signed into law on April 20, 2005. See http://www.washintongtonpost.com, April 13 2005; Susan Haigh, Connecticut Becomes Second State to Approve Gay Unions After Governor Signs Bill, http://abcnews.com, April 21, 2005. Notably, no state has amended its Constitution with language as broad as Nebraska. See, e.g., Nev. CONST. art. I, § 21; Or. CONST. art. XV, § 5a.
A New York state court judge recently ruled that denying a same-sex couple the right to marry violates the New York State Constitution’s Equal Protection and Due Process Clauses. Seymour v. Holcomb, 7 Misc.3d 530, 790 N.Y.S.2d 858 (N.Y.App.Div.2005) (en banc). The Oregon Supreme Court, however, recently invalidated a same-sex marriage on statutory grounds. Li v. State, 338 Or. 376, 110 P.3d 91 (2005). A California Court of Appeals recently found that the state’s domestic partner law did not conflict with a voter initiative limiting marriage to a man and a woman. Knight v.Super. Ct. of Sacramento County, 128 Cal.App.4th 14, 26 Cal.Rptr.3d 687, 698 (2005).

17

Recently, the City of Omaha proposed a labor contract with the Omaha Police Union that included benefits for same-sex domestic

partners. The parties and attorneys debated the constitutionality of the proposal in light of Initiative 416. Joseph Morton, 2000 Vote

Invoked in Debate Over Police Benefits, Omaha World-Herald, April 6, 2004. This provides a good example of the chilling effect

Section 29 has had on those wishing to advocate for partnership rights. See testimony given at Omaha City Council Meeting

concerning Police Union Contract, tapes dated May 4, 2004, and May 11, 2004. See also Heidi Eischen, For Better or for Worse:

An Analysis of Recent Challenges to Domestic Partner Benefits Legislation, 31 U. Tol. L.Rev. 527, 531 (2000).

18

However, the court need not determine if a state can so define marriage. See supra n. 1. But see Goodridge v. Dept. of Public

Health, 440 Mass. 309, 798 N.E.2d 941, 969 (2003) (discrimination in marriage against same-sex couples unconstitutional under

state constitution); Baker v. State, 170 Vt. 194, 744 A.2d 864, 885 (1999) (exclusion of same sex couples from marriage is

unconstitutional); Devlin v. Philadelphia, 862 A.2d 1234 (Pa.2004) (where ordinance allowing Life Partnership benefits to same-

sex couples did not violate state law defining marriage as between a man and a woman).

19

As discussed in the First Amendment section of this opinion, heightened scrutiny is applied to legislation that touches on a

“specific prohibition of the Constitution, such as those in the first ten amendments” or that “restricts those political processes

which can ordinarily be expected to bring about repeal of undesirable legislation.” United States v. Carolene Products, 304 U.S.

144, 152 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). In light of the court’s findings, the court need not engage in strict scrutiny

analysis.

20

The court need not determine whether, once a law is found to be directed at a “politically unpopular group,” more searching

scrutiny is required. See, e.g., Lawrence, 539 U.S. at 580, 123 S.Ct. 2472 (O’Connor, J., concurring).

21

Many companies and governmental subdivisions are already giving such benefits to their employees. By 2003, the list of

employers offering family health benefits to same-sex couples included “187 colleges and universities; 162 local governments; and

ten state governments.” Judy Greenwald, More U.S. Employers Seen Adding Benefits for Domestic Partners, Bus. Ins., Aug. 11,

2003, at 3. In 2004, “[s]eventy percent of the top 500 companies offer[ed] domestic-partner benefits for same-sex couples,

according to a December Business Week Report. That’s up from 25% in 2000.” Chuanpis Santilukka, Same-Sex Benefits Key to

Marriage Debate, St. Cloud Times, Mar. 24, 2004 at 4A. Further, over 7000 companies “offer health benefits to same-sex

domestic partners.” James Ricci & Patricia Ward Biederman, Acceptance of Gays on Rise, Polls Show, L.A. Times, Mar. 30, 2004,

at B1. Belgium, the Netherlands, Spain, Iceland, Sweden and Canada have afforded some marital rights to same-sex couples.

Clifford Krauss, Canada Supreme Court to Hear Arguments on Same-Sex Marriage, N.Y. Times, Oct. 6, 2004, at A7. Most

recently, the Montana Supreme Court found that Montana universities must offer health insurance to gay employees’ partners.

Snetsinger v. Montana University System, 325 Mont. 148, 104 P.3d 445 (2004), and an Arkansas trial judge struck down a

regulation that barred gays from being foster parents under a separation of powers analysis. Howard v. The Child Welfare Agency

Review Bd., 2004 WL 3154530 (Ark.Cir.2004). Additionally, many states and city governments are now offering benefits and

rights to same-sex couples, for example, Vermont, Washington, Oregon, Hawaii, New York, Massachusetts, Connecticut, Phoenix

and Tucson. See Standhardt v. State of Arizona, 206 Ariz. 276, 77 P.3d 451, 463 n. 17 (2004). In 2003, California’s Governor Gray

Davis signed into law a statute requiring state contractors to provide health-care benefits to domestic partners. Equal Benefits in

State Contracting, AB 17, Chpt. 752. See also Lisa Bennett and Gary Gates, The Cost of Marriage Inequality to Gay, Lesbian and

Bisexual Seniors: A Human Rights Campaign Foundation Report, http://www.urban.org/url.cfm?ID=410939, January 21, 2004

(discussing the financial burdens on senior same-sex couples due to discriminatory laws).

22

Although the court’s decision with respect to the First and Fourteenth Amendment issues is dispositive, the resolution of the bill of

attainder claim likewise stands on its own merits.

23

Again, the Bill of Attainder analysis dove-tails with the First Amendment and Equal Protection issues in this case.

	   	  
	  

 
 	  
290 F.Supp.2d 1004 United States District Court,
D. Nebraska.
CITIZENS FOR EQUAL PROTECTION, INC.; Nebraska Advocates for Justice and Equality, Inc.; and ACLU Nebraska, Plaintiffs, v.
Attorney General Jon BRUNING and Governor Michael O. Johanns, Defendants.
No. 4:03CV3155. | Nov. 10, 2003.
Attorneys and Law Firms
*1005 Amy A. Miller, American Civil Liberties Union Foundation of Nebraska, Lincoln, NE, David S. Buckel, Lambda Legal, New York, NY, Fred B. Chase, Lambda Legal, Dallas, TX, James D. Esseks, Tamara Lange, ACLU Foundation, New York, NY, Robert F. Bartle, Bartle, Geier Law Firm, Lincoln, NE, for Plaintiffs.
Matthew W. McNair, Attorney General’s Office, Lincoln, NE, for Defendants.
Opinion
MEMORANDUM AND ORDER
BATAILLON, District Judge.
Introduction
This matter is before the court on defendants’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Filing No. 22. Defendants contend that this case should be dismissed as the plaintiffs lack standing, the case lacks ripeness, and the cause of action for bill of attainder should be dismissed. I have carefully reviewed the record, briefs in support of and in opposition to the motion, and the relevant case law. I conclude that the motion to dismiss should be denied.
Background
Guyla Mills headed a petition drive, known as Initiative 416. Nebraska voters adopted Initiative 416 in 2000. On December 7, 2000, Governor Johanns signed the Initiative into law as Article 1, Section 29 of the Nebraska Bill of Rights. Section 29 states: “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.”
The plaintiffs, Nebraska organizations that have lesbian, gay, and bisexual members, contend the second sentence of Section 29 should be declared unconstitutional as it prohibits lesbian, gay, and bisexual persons from accessing the political process to attempt to obtain legal protections, virtually barring legal protection of any kind to same-sex relationships. Plaintiff Citizens for Equal Protection is a nonprofit membership organization whose mission is to stop discrimination based on sexual orientation through legislation and education. Plaintiff Nebraska Advocates for Justice and Equality is a nonprofit organization that was created in response to the anti-gay campaign for Initiative 416. Both plaintiffs lobby for legislation that is designed to protect the needs of its members. Plaintiff ACLU is a nonprofit entity that advocates for the protection of civil

liberties for all persons.
*1006 Plaintiffs argue that they are unable to, at the very least, seek legislation to provide legal protections for those in samesex relationships. In support of their arguments, plaintiffs note that they approached Senator Nancy Thompson and asked her to draft legislation concerning domestic partnerships and, in particular, language that relates to health, funeral, hospital and organ donations. Senator Thompson proposed a bill on January 22, 2003, to allow both same-sex and different-sex couples to make decisions regarding funeral arrangements and organ donations. Filing No. 1, Ex. A. Senator Thompson submitted a request to Nebraska Attorney General Bruning asking him to issue an opinion as to the constitutionality of such legislation. On March 10, 2003, the Attorney General issued an opinion determining that the proposed bill would violate Section 29. Filing No. 1, Ex. B. Plaintiffs also have a draft bill entitled “Financial Responsibility and Protection for Domestic Partners Act” which would allow same-sex couples to formalize their responsibilities to each other and would allow private companies to offer certain benefits to domestic partners. Filing No. 1, Ex. C. However, because of Section 29 and the recent opinion of the Attorney General, plaintiffs will not have the opportunity to present this legislation to the Unicameral. They argue they are no longer permitted to lobby members of the Unicameral regarding health care decisions, living expenses, funeral arrangements, and hospital visitations.
Section 29 is the only law of its kind in the United States. According to the plaintiffs, over 150 local governments offer samesex health benefits; a number of states and municipalities offer domestic partner registries; and over 5,000 companies recognize same-sex couples domestic partnerships. Filing No. 1, ¶ 20.
In this lawsuit, plaintiffs are seeking an equal opportunity to lobby their elected representatives regarding legal protections for same-sex relationships. They are not asking this court for any particular remedies relating to marriage, civil unions, or domestic partnerships.
Standard of Review
Fed.R.Civ.P. 12(b)(1)
For the court to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the complaint must be successfully challenged either on its face or on the factual truthfulness of its averments. Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993). In a facial challenge to jurisdiction, all of the factual allegations regarding jurisdiction would be presumed true and the motion could succeed only if the plaintiff had failed to allege an element necessary for subject matter jurisdiction. Id.
If a plaintiff lacks standing, the district court has no subject matter jurisdiction. Faibisch v. Univ. of Minn., 304 F.3d 797, 800 (8th Cir.2002). Therefore, a standing argument implicates Rule 12(b)(1). To establish standing, a plaintiff must show that it is likely that the remedy sought can redress the injury. Id. A threat of injury must be both real and immediate, not conjectural and hypothetical. Id.
Fed.R.Civ.P. 12(b)(6)
In reviewing a complaint on a Rule 12(b)(6) motion, the court must consider all of the facts alleged in the complaint as true and construe the pleadings in a light most favorable to the plaintiff. See, e.g., Brotherhood of Maint. of Way Employees v. BNSF R.R., 270 F.3d 637, 638 (8th Cir.2001). A dismissal is not lightly granted. “A complaint shall not be dismissed for its failure to state a claim upon which relief can be granted unless it appears beyond a reasonable doubt that plaintiff can prove no set of facts in support of a claim entitling him to relief.” Young v. *1007 City of St. Charles, 244 F.3d 623, 627 (8th Cir.2001). When accepting the facts of the complaint as true, a court will not, however, “blindly accept the legal conclusions drawn by the pleader from the facts.” Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.1990) (citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987)). A dismissal under Rule 12(b)(6) is therefore granted “only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief,” Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir.1999), such as a missing allegation about an element necessary to obtain relief or an affirmative defense or other bar. Doe v. Hartz, 134 F.3d 1339, 1341 (8th Cir.1998). The court does not determine whether the plaintiff will ultimately prevail, but rather whether the plaintiff is entitled to present evidence

in support of his claim. Doe v. Norwest Bank, 909 F.Supp. 668, 670 (D.Minn.1995).
Discussion
Standing [1] Defendants argue that plaintiffs lack standing to challenge the constitutionality of Section 29. Plaintiffs contend that they have already been injured by the defendants and do in fact have standing to pursue this lawsuit. In order to establish standing, the plaintiffs in this case must show (1) an injury in fact where there is harm, either actual or imminent; (2) causation that connects the plaintiffs’ injury with the conduct of the defendant; and (3) redressability—whether the requested relief will actually address the injury. Northeastern Fla. Chapter of the Assoc. Gen. Contractors v. City of Jacksonville, 508 U.S. 656, 663, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). With regard to the initial factor, defendants argue first that there is no injury, as plaintiffs could try to amend the constitution and second, because plaintiffs did not have any rights under Nebraska law prior to the passage of Section 29.
Plaintiffs argue that they do have injury-in-fact, as Section 29 is a barrier that prevents them from proposing and passing legislation. Plaintiffs rely on Northeastern Fla. Chapter of the Assoc. Gen. Contractors wherein the court held that the injuryin-fact required for standing in “an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” Id. at 666, 113 S.Ct. 2297. The court further stated that “when the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing.” Id. Plaintiffs also rely on the fact that they have alleged an equal protection violation in this lawsuit on the basis similar to that which was found to be unconstitutional in Romer v. Evans, 517 U.S. 620, 621, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (disqualification of a class from seeking legal protections held to violate equal protection).
In the case at hand, Senator Thompson introduced Legislative Bill 671, but following the opinion of the Attorney General, she took no further action. It is obvious that Section 29 acts as a barrier to the ability of the plaintiffs to obtain support for the introduction and passage of legislation. I conclude that Section 29 acts as a barrier to plaintiffs’ participation in the political process, and thus as a result plaintiffs have established injury for purposes of the standing requirement.
Defendants argue the second prong, causation, is not proven as the plaintiffs can pursue other avenues to redress their *1008 grievances and to obtain the benefits they want. Plaintiffs argue that the conduct of the defendants has caused them to be unable to even produce bills for legislative review. I agree. Plaintiffs’ inability to access the legislative system is directly caused by the passage of Section 29. Consequently, I determine that plaintiffs have established causation for purposes of the standing requirement.
With regard to prong three, redressability, defendants contend that plaintiffs would only receive emotional gratitude if they overturn Section 29, as they have not received any real injury. They argue that such “psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 107, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Plaintiffs have alleged an equal protection violation in their complaint. Filing No. 1. If plaintiffs were to win on the merits of the case, and if Section 29 is found to be unconstitutional, then plaintiffs would receive the relief they have requested, namely, access to the legislative process. Consequently, I determine that plaintiffs have established redressability for purposes of the standing requirement.
Ripeness [2] Ripeness “is peculiarly a question of timing. Its basic rationale is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.” Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568, 580, 15 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (citations omitted). To be ripe for decision, a case must satisfy two elements: (1) the issues must be fit for judicial decision, and (2) there must be hardship to the parties by withholding the court’s consideration. Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 123 S.Ct. 2026, 2036, 155 L.Ed.2d 1017 (2003). If “front-desking”

occurs, then the case is more likely ripe for judicial decision. Reno v. Catholic Soc. Serv., Inc., 509 U.S. 43, 61–63, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (illegal aliens were having their applications rejected before a determination of their eligibility for legalization, called “front-desking,” and thus ripe for review). Plaintiffs argue that front-desking is occurring in this case. Defendants argue that no action has yet been taken against an individual or group that is cognizable by the court. Defendants seem to argue that plaintiffs must first get legislation passed and have it invalidated by the court before injury occurs. As plaintiffs point out, the defendants have missed the point of plaintiffs’ argument in this regard. Plaintiffs have tried to submit legislation, through Senator Thompson, to the Unicameral. There is a barrier hindering their ability to even present the proposed legislation. Consequently, I determine that plaintiffs have established sufficient injury so as to conclude that the claim in this case is ripe for review. I further conclude that this is the type of decision that should be decided by the court, that the issue is not premature, and that further hardship will occur if plaintiffs are not permitted to seek judicial intervention.
Bill of Attainder [3] Plaintiffs allege in their complaint that the actions by the defendants constitute a bill of attainder. To be considered a bill of attainder the legislative act must (1) apply to named individuals or easily ascertainable members of a group, (2) inflict punishment, and (3) be without judicial trial. United States v. Lovett, 328 U.S. 303, 315, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946). The bill of attainder clause is “to be read in light of the evil the Framers had sought to bar: legislative punishment, of any form or severity, of specifically designated persons or groups.” *1009 United States v. Brown, 381 U.S. 437, 447, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965).
A. Named Individual or Easily Ascertainable Group [4] The legislative act should in general name persons to be punished or by described terms of conduct. Selective Serv. Sys. v. Minn. Public Interest Research Group, 468 U.S. 841, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984) (applied to group of people who failed to register for the draft). The specificity requirement is met when the law applies to “easily ascertainable members of a group.” Brown, 381 U.S. at 448–49, 85 S.Ct. 1707. As the court points out, it was not that unusual for the English bills of attainder “to inflict their deprivations upon relatively large groups of people, sometimes by description rather than name.” Brown, 381 U.S. at 461, 85 S.Ct. 1707. In the case before me, Article 1 Section 29 names both specific groups and also describes them in terms of their conduct. Section 29 names the specific group of “civil unions” and “Domestic Partners” and describes their conduct as “the uniting of two persons of the same sex.” Consequently, I conclude that plaintiffs have shown Section 29 applies to an easily ascertainable group.
B. Without Judicial Trial A reading of Section 29 establishes that there is no judicial trial before preventing the legal recognition of same-sex relationships. All parties appear to concede this issue, and upon a review of the statute and the record, I conclude that Section 29 does not provide for a judicial trial.
C. Infliction of Punishment In deciding whether a legislative act inflicts punishment, the Supreme Court has recognized three necessary inquiries: (1) whether the challenged legislation falls within the historical meaning of legislative punishment, (2) whether the statute can be said to further nonpunitive legislative purposes, and (3) whether the legislative record shows a congressional intent to punish. Selective Serv. Sys., 468 U.S. at 852, 104 S.Ct. 3348; Planned Parenthood v. Dempsey, 167 F.3d 458, 465 (8th Cir.1999).
Historical Meaning Historically, bills of attainder imposed the death penalty, but lesser penalties have also been included. Selective Serv. Sys., 468 U.S. at 852, 104 S.Ct. 3348. The court in discussing these changes has stated: “the list of punishments forbidden by the Bill of Attainder Clause has expanded to include legislative bars to participation by individuals or groups in specific employment or professions.” Id. See also Brown, 381 U.S. 437, 85 S.Ct. 1707 (Communist Party members barred from labor

union); United States v. Lovett, 328 U.S. 303, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946) (salary cuts for three government employees); Cummings v. Missouri, 71 U.S. 277, 4 Wall. 277, 18 L.Ed. 356 (1866) (priest disqualified from practicing as clergy); and Garland, 71 U.S. 333, 4 Wall. 333, 18 L.Ed. 366 (1866) (lawyers barred from practice of law). Alexander Hamilton talked about this issue and stated with regard to prohibiting the bill of attainder:
[O]f this kind is the doctrine of disqualification, disenfranchisement, and banishment by the acts of the legislature. The dangerous consequences of this power are manifest. If the legislature can disenfranchise any number of citizens at pleasure by general descriptions, it may soon confine all the votes to a small number of partisans, and establish an aristocracy or oligarchy....
United States v. Brown, 381 U.S. at 444, 85 S.Ct. 1707, (quoting III (John C.) Hamilton, History of the Republic of the United States, p. 34 (1859)) (quoting Alexander Hamilton). As discussed in Brown, that *1010 the legislature of the United States passed statutes to single out the Tories and restrict their ability to resist the revolution, and as the legislature did against Communist Party membership, plaintiffs argue Section 29 is directed at gay, lesbian, bisexual and transsexual people to prohibit their political ability to effectuate changes proposed by the majority. Id. at 442, 85 S.Ct. 1707.
Clearly, plaintiffs have made an initial case that the law in question operates as a legislative bar for their specified groups. Accordingly, I find that the challenged legislation falls within the historical meaning of the term punishment.
Legislative Purposel Intent to Punish Because the arguments are overlapping in some respects with regard to these two inquires, I shall address them simultaneously. Defendants argue that the purpose of Section 29 is to retain the traditional meaning of the word “marriage,” i.e., as being between a man and a woman. Thus, they argue, Section 29 does not punish or prohibit any conduct. Defendants rely on the case in which the court concluded that the “Don’t Ask, Don’t Tell” policy was not a bill of attainder. Richenberg v. Perry, 97 F.3d 256, 264 (8th Cir.1996).
Plaintiffs argue 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.” Filing No. 30, Brief of Plaintiffs, at 32. Plaintiffs first argue that Section 29 disenfranchises lesbian, gay and bisexual people as they no longer can petition their representatives and city government for legislative change. Prior to Section 29, they had the right to use the political process. Plaintiffs argue that this type of disenfranchisement is the equivalent of punishment. Further, contend the plaintiffs, Section 29 prohibits government employers from offering benefits, such as family health insurance and retirement benefits, to cohabiting gay, lesbian, bisexual and transsexual employees. Plaintiffs argue that this constitutes punishment. Third, plaintiffs argue that “[t]he vice of attainder is that the legislature has decided for itself that certain persons possess certain characteristics and are therefore deserving of sanction....” Brown, 381 U.S. at 449 n. 23, 85 S.Ct. 1707. The same is applicable in this case, urge plaintiffs, as Section 29 is intended to deny constitutional rights to gay, lesbian and bisexual persons. Plaintiffs argue that there is no nonpunitive reason for passage of Section 29.
Plaintiffs also contend that the passage of Section 29 was motivated purely to prevent gays and lesbians from accessing the political system and rendering them second class citizens. See Filing No. 1, ¶ 21 (comments by Guyla Mills, who led the petition drive that Section 29 was to make known that homosexual and heterosexual marriages are not equivalents and that homosexual relationships are morally inferior). This is further evidence, argue plaintiffs, of the intent to punish same-sex couples.
As stated by the Supreme Court, legislation that “identifies persons by a single trait and then denies them protection across the board,” resulting in “disqualification of a class of persons from the right to seek specific protections from the law is unprecedented....” Romer, 517 U.S. at 633, 116 S.Ct. 1620. 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.” Id. The court further stated that such a law will “raise the inevitable inference that the disadvantage imposed is *1011 born of animosity toward the class of persons affected.” Id. at 634, 116 S.Ct. 1620.
This is unlike the cases wherein the courts decided that statutes served nonpunitive purposes and, therefore, were valid. See,

e.g., Planned Parenthood of Mid–Missouri and Eastern Kansas, Inc. v. Dempsey, 167 F.3d 458 (8th Cir.1999) (removal of funding for abortion services deemed to support nonpunitive purpose of removing State’s approval from abortion services); Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984) (denial of financial aid to males who would not register for draft not punishment where goal was to make males register); and United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (conviction for burning selective service card not punitive where nonpunitive goal was to continue availability of selective service certificates).
Section 29 does not just withhold a benefit; it actually prohibits same-sex relationship couples from working to obtain governmental benefits. If the purpose, as offered by the defendants, of Section 29 is merely to maintain the common law definition of marriage, there would be no need to prohibit all forms of government protection or to preclude domestic partnerships and civil unions. I conclude that the plaintiffs have met the legal requirements for stating a claim of bill of attainder.
THEREFORE, IT IS ORDERED that defendants’ motion to dismiss, Filing No. 22, is denied.
	  
	  

 
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IN THE UNITED STATES DISTRICT COURT DISTRICT OF NEBRASKA

CITIZENS FOR EQUAL PROTECTION, INC., )

a non-profit organization incorporated under the )

laws of Nebraska; NEBRASKA ADVOCATES )

FOR JUSTICE AND EQUALITY, a non-profit )

organization incorporated under the laws of

)

Nebraska; ACLU NEBRASKA, a non-profit

)

organization incorporated under the laws of

)

Nebraska,

)

)

Plaintiffs,

)

)

-v-

)

) ATTORNEY GENERAL JON C. BRUNING, in )

his official capacity; GOVERNOR MICHAEL O. )

JOHANNS, in his official capacity,

)

)

Defendants.

)

)

COMPLAINT
Case No. 1:{)3 tv ~j/5S

INTRODUCTION

1. Plaintiffs are Nebraska organizations that advocate for equality under the law as part of

their missions and that have lesbian, gay and bisexual members. Plaintiffs seek to have

Article I, Section 29 of the Nebraska Constitution (Section 29) declared unlawful as a denial

of equal protection and a bill of attainder.

2. Section 29 prohibits government recognition of the "uniting of two persons of the same

sex in a civil union, domestic partnership, or other similar same-sex relationship," thereby

barring lesbian, gay and bisexual people from using the ordinary political process to seek

1

important legal protections that all other Nebraskans already have or may seek without constraint. Section 29 applies at all levels of state and municipal government, imposing a special disability on people in same-sex relationships whether they seek protection for their relationships from government employers, administrative agencies, cities, towns, or the state legislature. 3. Section 29 prevents same-sex couples from securing protection against a wide array of injuries that domestic partnership laws and policies are designed to address, including being prevented from visiting a same-sex partner in the hospital, making care decisions when a same-sex partner is incapacitated, taking bereavement leave when a same-sex partner dies, or making funeral arrangements for a same-sex partner after death. 4. In this lawsuit, plaintiffs do not ask for marriage, civil unions or domestic partnerships. Instead, they seek nothing more - and nothing less - than a level playing field, an equal opportunity to convince the people's elected representatives that same-sex relationships deserve legal protection. This lawsuit is about equal access, not guaranteed success, in the political arena.
JURISDICTION AND VENUE 5. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation
under color of state law of rights secured by the United States Constitution. 6. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. Jurisdiction to grant
the declaratory reliefrequested is provided by 28 U.S.C. § 2201.
2

7. Venue is proper in this district pursuant to 28 U.S.c. § l391(b) because the defendants reside within the district and a substantial part of the events giving rise to plaintiffs' claims occurred in this district. PARTIES
8. Plaintiff CITIZENS FOR EQUAL PROTECTION, INC. (CFEP) is a non-profit membership organization incorporated under the laws of Nebraska in 1993. CFEP's mission is to eliminate discrimination based on sexual orientation through legislation and education. CFEP is a grassroots lesbian, gay, bisexual and transgender civil rights organization. CFEP has lesbian, gay and bisexual members, including members who are lesbian, gay or bisexual public employees.
9. Plaintiff NEBRASKA ADVOCATES FOR JUSTICE AND EQUALITY (NA1E) is a non-profit membership organization incorporated under the laws of Nebraska. NA1E incorporated three years ago in response to the anti-gay campaign in support of Section 29, and its mission is to advocate, at all levels of government, for legislation that would advance the social, economic and educational interests of people who are discriminated against or denied the equal protection of the laws. NA1E's primary activity is lobbying against legislation that discriminates based on sexual orientation or gender identity and in favor of legislation that protects the civil and political rights oflesbian, gay, bisexual and transgender Nebraskans. NAffi has lesbian, gay and bisexual members, including members who are lesbian, gay or bisexual public employees.
10. Plaintiff ACLU NEBRASKA is a non-profit membership organization incorporated under the laws of Nebraska. ACLU NEBRASKA is committed to the protection of civil
3

liberties of all persons, including rights secured by the Constitutions of the United States and the State of Nebraska. ACLU NEBRASKA works to protect and promote civil liberties throughout the State of Nebraska. ACLU Nebraska has worked to advance the civil liberties of gay, lesbian and bisexual Nebraskans by lobbying in support of bills that seek to extend legal protections to lesbian, gay and bisexual people and against legislative efforts to discriminate on the basis of sexual orientation. ACLU NEBRASKA has lesbian, gay and bisexual members, including members who are lesbian, gay or bisexual public employees. 11. Defendant JON C. BRUNING is sued in his official capacity as Attorney General of the State of Nebraska. The Attorney General is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this Complaint. The Attorney General is the chieflaw enforcement officer of the State, and is charged with enforcing the laws of the State of Nebraska and with issuing opinions as to the constitutionality of proposed laws and acts of the State. 12. Defendant MICHAEL O. JOHANNS is sued in his official capacity as Governor of the State of Nebraska. The Governor is a person within the meaning of 42 U.S.C. § 1983 and was acting under color of state law at all times relevant to this Complaint. The Governor is responsible for the civil administration of the laws of the State.
STATEMENT OF FACTS 13. Initiative 416, which was signed into law by Governor Johanns on December 7, 2000,
amended the Nebraska Constitution's Bill of Rights, adding the following provision as Article I, Section 29:
4

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. 14. The constitutional barrier created by Section 29 is the only one of its kind in the nation. No other state constitutionally prohibits state and local government officials from recognizing same-sex relationships in any way, including as domestic partnerships. 15. Section 29 classifies people based on sexual orientation. It singles out lesbian, gay and bisexual people by referring to a unique characteristic they share - participation in same-sex relationships - and then uses that shared characteristic to deny them equal footing in the political arena. While different-sex couples may seek and obtain legislation and government employment policies that protect their domestic partnerships, same-sex couples are prevented from doing so. 16. The very purpose of Section 29 is to make it more difficult for lesbian, gay and bisexual people than for all others to seek aid from the government, to make them unequal to everyone else. Unlike other Nebraskans, who may seek relief at any level of government when they want to protect their relationships, same-sex couples are constitutionally barred from using ordinary political channels to obtain legal protection for their relationships. 17. Section 29 makes it futile to ask government officials for even the most basic protections for people united in same-sex relationships, including the right and the responsibility to provide for one another's basic living expenses, to make health care decisions for a partner who is incapacitated, to visit a partner in the hospital and to make funeral arrangements when a partner dies. Other Nebraskans face no such constitutional barrier and may seek legal
5

protection for their relationships - including different-sex domestic partnerships - without constraint. 18. The futility of seeking protection for people in same-sex relationships through ordinary political channels is underscored by the fate of a recent bill in the Nebraska legislature. The bill proposed to allow both same-sex and different-sex couples to protect their families at the end of life by authorizing domestic partners to make decisions about funeral arrangements and organ donation. In response to the bill, the Attorney General issued an opinion on March 10, 2003 stating that the proposed law would be unconstitutional under Section 29 because it "would create new rights which spring from recognition of a domestic partnership; a partnership which could comprise same sex couples." A copy of the proposed legislation reviewed by the Attorney General is incorporated by reference and attached as Exhibit A. A copy of the Attorney General's opinion on the proposed legislation is incorporated by reference and attached as Exhibit B. 19. Section 29 also denies lesbian, gay and bisexual state and local government employees a level playing field when they try to advocate directly with their employers for bereavement leave when a same-sex partner dies, family and medical leave when a same-sex partner is seriously ill or injured, health insurance for a same-sex partner, or any other form of protection that requires recognition of a same-sex relationship. Other public employees in Nebraska face no such constitutional barrier and already have such protections for their relationships or may seek them without constraint. 20. Recognition of domestic partnerships is widespread throughout the nation in both the public and private sectors. Over 150 local governments and agencies offer health benefits to
6

same-sex domestic partners of employees, and eleven state governments offer them, including Iowa. Over 50 states and municipalities offer domestic partner registries, including Iowa City, Iowa and St. Louis, Missouri. In the private sector, more than 5,000 companies, and nearly 40% of Fortune 500 companies, recognize the domestic partnerships of same-sex couples. 21. Guyla Mills, who led the petition drive to place Initiative 416 on the ballot and chaired the Defense of Marriage Amendment Committee in support of Section 29, publicly explained the purpose of Section 29 on numerous occasions prior to its passage. Mills stated that Section 29 was intended to prevent "the havoc that would result by putting 'homosexual marriage' on the public policy freeway ... venturing down a path where children are taught in schools that homosexual and heterosexual marriage are equal ... where adoption into homosexual homes is normalized." Mills explained that the second sentence of Section 29 was necessary "to send a message to society about homosexuality ... that homosexuality and heterosexuality are not morally equivalent." Mills stated that Section 29 was based on the prevailing morals of society and explained the importance of sending a strong message about homosexuality, "that homosexuality is a sin and should not be sanctioned even by 'quasimarriage' unions such as domestic partnerships and civil unions." Mills also stated that her organization chose to petition to amend the constitution rather than to amend state statutes to ensure that their work would not be undermined in future elections. 22. Plaintiffs each have members who are lesbian, gay or bisexual Nebraskans in committed same-sex relationships and members who plan to be in committed same-sex relationships in the future. Plaintiffs' members include the following same-sex couples:
7

a. Dave Gilsdorf and his partner Robb Crouch are in their early thirties. They have been in a committed. loving relationship for over six years. Dave grew up in North Platte, Nebraska and works in Lincoln as a software developer with a private company. Robb was raised mainly in Des Moines, Iowa and is an assistant director of communications at a non-profit foundation. Dave and Robb are both close to their extended family members. Last year, they hosted Thanksgiving for their extended family at their new home. Dave and Robb care and provide for one another and have made a commitment to each other that they will continue to do so, but Section 29 denies them equal footing in their efforts to obtain domestic partnership legislation that would allow them to take on the legal rights and obligations to care for one another and to make important health care and funeral decisions with and for one another when one of them is incapacitated or dies. In addition, Robb's employer participates in a state university insurance pool, and Section 29 prevents Robb and Dave from advocating on equal footing for a policy that would allow Robb to provide health insurance for Dave should uncertain economic times and job loss mean that their family needs that safety net; for a policy that would allow Robb to take family and medical leave to care for Dave ifhe is injured or becomes seriously ill; or for a policy that would allow Robb to take bereavement leave to attend Dave's funeraL Dave and Robb are members of CFEP, NAJE and ACLU NEBRASKA.
b. Judy Gibson is 62 and her partner Barbara DiBemard is 53. They have been in a committed, loving relationship for over 14 years. Judy is a therapist and has lived in Lincoln since 1969. Barbara has been an English professor at the University of Nebraska-Lincoln since 1978. Barbara and Judy became seriously involved in 1988 and
8

built a wheelchair-accessible house together in the early 1990s as part of their plan to deal with Judy's degenerative illness. Building the house together represented their commitment that they would care for one another for the rest of their lives. Judy and Barbara care and provide for one another and have made a commitment to one another that they will continue to do so, but Section 29 denies them equal footing in their efforts to obtain domestic partnership legislation that will allow them to take on the legal rights and obligations to care for one another, to make health care and funeral decisions with and for one another when one of them becomes seriously ill or dies, and to pay third parties for debts incurred by the other for basic living expenses. In addition, Section 29 denies Judy and Barbara equal footing in their efforts to obtain state university policies that protect their relationship. For example, under Section 29, the university is not permitted to establish a policy allowing Barbara to take time off from work to take Judy to her regular medical and wheelchair maintenance appointments. Judy and Barbara are also concerned about planning for health insurance as they approach retirement. Judy is not eligible for health insurance through Barbara's state university employer, and Section 29 prevents them from advocating on equal footing for a new university policy that would allow Judy to participate in Barbara's health plan when they are ready to retire. This is particularly important because Barbara's health insurance policy provides far better coverage than Judy can obtain through her current employer or on the private insurance market. Judy and Barbara are members ofCFEP, NAJE and ACLU NEBRASKA.
9

c. Nancy Brink and her partner Maria Perez will hold a commitment ceremony this summer at the North Side Christian Church in Omaha, where Nancy has been the minister for 15 years. Nancy was born in Louisiana, the daughter ofa minister, and moved to Omaha 15 years ago after attending seminary in Tennessee and serving other congregations. Maria was born in Puerto Rico, taught science in public school for 15 years and now teaches Spanish to college students. Nancy and Maria met at the national meeting for their denomination, the Christian Church (Disciples of Christ), and Maria now lives with Nancy and her seven-year-old daughter. Nancy shares the responsibilities of caring for her daughter with her former partner of 14 years, and Maria has become another parent to Nancy's daughter. Shortly before Nancy and Maria first met, Nancy underwent two surgical procedures, and her experience in the hospital made her realize that she cannot be sure that Maria will be permitted to make important medical decisions for her if anything happens in the future, or even that Maria will be permitted to visit her in the hospital during family visiting hours. Nancy and Maria care and provide for one another and for Nancy's daughter and have made a commitment to one another that they will continue to do so, but Section 29 prevents them from advocating on equal footing for legislation that will authorize them to take on the rights and responsibilities to care for one another and to make important health care and funeral decisions with and for one another when one of them becomes seriously ill or dies. Nancy and Maria are members ofCFEP and NAJE.
d. Jim Kieffer and his partner Gary Lopez are in their early forties and live in Omaha. They have been in a committed, loving relationship for over ten years and exchanged vows in a
10

commitment ceremony in November 1993. Jim is a development consultant for a healthcare company and Gary is a manager for a railroad. Jim and Gary are both active in their church, and they spend much of their free time gardening at home and caring for a close friend who is disabled. lim and Gary care and provide for one another and have made a commitment to one another that they will continue to do so, but Section 29 prevents them from advocating on equal footing for legislation that would allow them to take on the legal rights and obligations to care for one another and to make important health care and funeral decisions with and for one another when one of them becomes incapacitated or dies. Jim and Gary are members of CFEP and NAJE. e. Donna Colley and Margaux Towne-Colley have been in a committed, loving relationship for over six years and are the proud moms of their IS-month-old son. Donna is a partner at a large law firm in Omaha, and Margaux is a full-time stay-at-home mom. Donna and Margaux always wanted to have children, and they started their family soon after their civil union ceremony. Donna and Margaux fully understand the added responsibilities that come with raising a child, including the need to plan for the possibility that one of them will become incapacitated or die unexpectedly or even that their relationship will not last for the rest of their lives. Like other families, Donna and Margaux want to honor their personal responsibilities to their family and want to take on the legal obligation to follow through with the fmancial, physical and emotional commitments they assumed when they decided to enter into a committed relationship and to have a child. Donna and Margaux care and provide for one another and for their son and they have made a commitment to one another that they will continue to do so, but Section 29 denies them
11

equal footing in their efforts to obtain legislation that would allow them to take on the legal rights and obligations to care for one another and to make important health care and funeral decisions with and for one another if one of them becomes incapacitated or dies and that would obligate both Donna and Margaux to pay third parties for debts incurred by either partner for basic living expenses. Donna and Margaux's concerns about financial responsibility to one another and to their son are of particular concern because of their decision that it was important for Margaux to be a full-time stay-at-home mom without an income or the means to obtain health-care insurance. Section 29 prevents Donna and Margaux from using ordinary political channels to seek any form of government protection for their family. Donna and Margaux are members ofCFEP and NAIE. 23. But for the barrier created by Section 29, plaintiffs and their members, including those identified in this Complaint, would work to convince state and local government in Nebraska to provide legal protections for people in committed same-sex relationships. For example, plaintiffs and their members would advocate for state and local domestic partnership legislation and associated protections for people in same-sex relationships, including enactment of their draft bill proposing a "Financial Responsibility and Protection for Domestic Partners Act," which would make domestic partners responsible for each others' basic living expenses and would automatically authorize a registered domestic partner to visit a partner in the hospital, to make health care decisions for an incapacitated partner, and to make decisions regarding organ donation and funeral arrangements when a partner passes
12

away. A copy of Plaintiffs' draft bill proposing a "Financial Responsibility and Protection for Domestic Partners Act" is incorporated by reference and attached as Exhibit C. 24. But for the barrier created by Section 29, plaintiffs and their members, including those identified in this Complaint, would advocate with public employers for the adoption of policies to protect people in committed same-sex relationships. For example, plaintiffs and their members would advocate for domestic partnership policies authorizing employees to take family and medical leave to care for a same-sex partner and to take bereavement leave to attend a same sex partner's funeral on the same terms that such leave is available to care for and to grieve the loss of other employees' immediate family members. 25. While the foregoing paragraphs detail some of the legal protections plaintiffs and their members wish to seek in the political arena and from government employers, in this lawsuit plaintiffs seek nothing more than an equal opportunity to try to convince governmental employers to adopt policies - and elected representatives to enact legislation - that would allow people in same-sex relationships to take on the rights and responsibilities that all other Nebraskans in committed relationships already have or may seek without constraint.
FIRST CLAIM FOR RELIEF (Equal Protection)
26. Plaintiffs repeat and reallege paragraphs 1 through 25 as if set forth in full. 27. Section 29 violates the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution. 28. Section 29 is a literal violation of equal protection. It imposes a special, broad and
undifferentiated disability on lesbian, gay and bisexual people, disqualifying same-sex
13

couples when they seek protection for their committed relationships through the ordinary political process or from government employers while allowing others to enjoy or to seek such protection without constraint. 29. Section 29's unequal treatment of people in same-sex relationships is sweeping, barring any governmental recognition ofthe uniting of two persons of the same sex, including in a domestic partnership, a civil union, or any other same-sex relationship. 30. Section 29 singles out one group of people for unequal treatment without sufficient justification and for the very purpose of making them unequal to everyone else.
SECOND CLAIM FOR RELIEF (Bill of Attainder)
31. Plaintiffs repeat and reallege paragraphs 1 through 30 as if set forth in full. 32. Section 29 is a bill of attainder in violation of Article I, section 10 of the United States
Constitution. 33. Section 29 legislatively punishes same-sex couples, including plaintiffs' members, based
on sexual orientation and without the protections of a judicial trial. Section 29 specifically designates lesbian, gay and bisexual people by referring to a unique characteristic of the group - participation in same-sex relationships. 34. Section 29 disqualifies lesbian, gay and bisexual people from using ordinary political channels to protect their same-sex relationships; disenfranchises them by barring their elected representatives from advancing any city, state or local policies or legislation that requires recognition of same-sex relationships; and excludes them from an important part of political
14

life by making it futile for them to participate in the democratic process in Nebraska in their efforts to obtain protection for same-sex relationships. 35. Section 29 deprives people in same-sex relationships of an essential component of citizenship and damages their social, cultural and political existence. 36. Section 29 inflicts its deprivations on lesbian, gay and bisexual people in order to keep them from bringing about what proponents of Section 29 considered to be unacceptable: recognition by state or local government of the uniting of two persons of the same sex whether in the fOIDl of a domestic partnership, a civil union, a marriage, or any other similar same-sex relationship. 37. Section 29 was intended to punish lesbian, gay and bisexual people. 38. The punishment imposed by Section 29 is unconditional and furthers no non-punitive purpose.
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment: 1. Declaring that Article I, Section 29 of the Nebraska Constitution violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; 2. Declaring that Article I, Section 29 of the Nebraska Constitution is a bill of attainder in violation of Article I, section 10 of the United States Constitution; 3. Striking down and permanently enjoining enforcement of Article I, Section 29 of the Nebraska Constitution; 4. Awarding Plaintiffs reasonable attorneys' fees and costs under 42 U.S.C. § 1988; and
15

5. Granting such other and further relief as the Court deems just and proper.
5 . Dated this ~ day of April, ?too

David S. Buckel Lambda Legal Defense & Education Fund 120 Wall Street, Suite 1500 New York, NY 10005 (212) 809-8585 ext. 212 (212) 809-0055 (fax)
Brian Chase Lambda Legal Defense & Education Fund 3500 Oak Lawn Ave. Dallas, IX 75219 (214) 219-8585 (214) 219-4455 (fax)

Robert F. Bartle # 15010 Bartle & Geier 1141 H Street Lincoln, NE 68501-3104 (402) 476-2847 (402) 476-2853 (fax)
Amy Miller # 21050 ACLU Nebraska 941 0 St., Ste. 760 Lincoln, NE 68508 (402) 476-8091 (402) 476-8135 (fax)
Tamara Lange James D. Esseks ACLU Foundation Lesbian & Gay Rights Project 125 Broad St., 18th Fl. New York, NY 10004 (212) 549-2627 (212) 549-2650 (fax)

P~t? /u-~~/
~C~'- , IV~~>-/----

16

 
 Case: 4:03-cv-3155 As of: 10/22/2012 08:08 PM CDT 1 of 10
CLOSED,NEBRASKA−DEFENDANT,NEBRASKADOCKET,TRIAL−LINCOLN
U.S. District Court District of Nebraska (4 Lincoln) CIVIL DOCKET FOR CASE #: 4:03−cv−03155−JFB−TDT

Citizens for Equal Protection et al v. Bruning et al Assigned to: Judge Joseph F. Bataillon Referred to: Magistrate Judge Thomas D. Thalken Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/30/2003 Date Terminated: 01/04/2007 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Citizens for Equal Protection Inc., a non−profit organization incorporated under the laws of Nebraska

represented by Amy A. Miller AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NEBRASKA 941 O Street Suite 706 Lincoln, NE 68508 (402) 476−8091 Fax: (402) 476−8135 Email: amiller@aclunebraska.org ATTORNEY TO BE NOTICED

David S. Buckel LAMBDA LEGAL − NEW YORK 120 Wall Street Suite 1500 New York, NY 10005 (212) 809−8585 Fax: (212) 809−0055 Email: dbuckel@lambdalegal.org ATTORNEY TO BE NOTICED

Fred B. Chase LAMBDA LEGAL − TEXAS 3500 Oak Lawn Avenue Suite 500 Dallas, TX 75219 (214) 219−8585 Fax: (214) 219−4455 Email: bchase@lambdalegal.org ATTORNEY TO BE NOTICED

James D. Esseks AMERICAN CIVIL LIBERTIES UNION FOUNDATION − NEW YORK 125 Broad Street 18th Floor New York, NY 10004−2400 (212) 549−2627 Fax: (212) 549−2650 Email: Jesseks@aclu.org ATTORNEY TO BE NOTICED

Robert F. Bartle BARTLE, GEIER LAW FIRM P.O. Box 83104 Lincoln, NE 68501−3104 (402) 476−2847 Fax: (402) 476−2853 Email: tpetsche@bartlegeierlaw.com ATTORNEY TO BE NOTICED

Case: 4:03-cv-3155 As of: 10/22/2012 08:08 PM CDT 2 of 10

Sharon M. McGowan AMERICAN CIVIL LIBERTIES UNION FOUNDATION − NEW YORK 125 Broad Street 18th Floor New York, NY 10004−2400 (212) 549−2593 Fax: (212) 549−2650 Email: smcgowan@aclu.org ATTORNEY TO BE NOTICED

Tamara Lange ACLU FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 (212) 549−2627 Fax: (212) 549−2650 Email: tlange@aclu.org ATTORNEY TO BE NOTICED

Plaintiff
Nebraska Advocates for Justice and Equality a non−profit organization incorporated under the laws of Nebraska

represented by Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED
David S. Buckel (See above for address) ATTORNEY TO BE NOTICED

Fred B. Chase (See above for address) ATTORNEY TO BE NOTICED

James D. Esseks (See above for address) ATTORNEY TO BE NOTICED

Robert F. Bartle (See above for address) ATTORNEY TO BE NOTICED

Sharon M. McGowan (See above for address) ATTORNEY TO BE NOTICED

Tamara Lange (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
ACLU Nebraska a non−profit organization incorporated under the laws of Nebraska

represented by Amy A. Miller (See above for address) ATTORNEY TO BE NOTICED

David S. Buckel (See above for address) ATTORNEY TO BE NOTICED

Fred B. Chase (See above for address) ATTORNEY TO BE NOTICED

James D. Esseks

Case: 4:03-cv-3155 As of: 10/22/2012 08:08 PM CDT 3 of 10
(See above for address) ATTORNEY TO BE NOTICED
Robert F. Bartle (See above for address) ATTORNEY TO BE NOTICED
Sharon M. McGowan (See above for address) ATTORNEY TO BE NOTICED
Tamara Lange (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Jon C. Bruning Attorney General, in his official capacity
Defendant Michael O. Johanns Governor, in his official capacity TERMINATED: 05/12/2005
Defendant Dave Heineman Governor

represented by Dale A. Comer ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−2682 Fax: (402) 471−3835 Email: dale.comer@nebraska.gov ATTORNEY TO BE NOTICED
Matthew W. McNair ATTORNEY GENERAL'S OFFICE − NEBRASKA 2115 State Capitol Building P.O. Box 98920 Lincoln, NE 68509−8920 (402) 471−2682 Fax: (402) 471−3820 Email: matt.mcnair@ago.ne.gov ATTORNEY TO BE NOTICED
represented by Dale A. Comer (See above for address) ATTORNEY TO BE NOTICED
Matthew W. McNair (See above for address) ATTORNEY TO BE NOTICED
represented by Dale A. Comer (See above for address) ATTORNEY TO BE NOTICED
Matthew W. McNair (See above for address) ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

Case: 4:03-cv-3155 As of: 10/22/2012 08:08 PM CDT 4 of 10

04/30/2003
04/30/2003 04/30/2003 04/30/2003 04/30/2003 05/01/2003
05/01/2003
05/01/2003
05/01/2003
05/01/2003 05/09/2003 05/14/2003 05/14/2003 05/14/2003 05/16/2003 05/16/2003

1 COMPLAINT against Defendants Attorney General Jon C. Bruning, and Governor Michael O. Johanns. Two Summonses issued, with receipt number 404524, in the amount of $ 150.00, by Attorney Robert F. Bartle on behalf of ACLU Nebraska, Citizens for Equal Protection, and Nebraska Advocates for Justice and Equality (Attachments: # 1)(KBJ) (Entered: 05/01/2003)
2 CIVIL COVER SHEET (KBJ) (Entered: 05/01/2003)
3 Two Summonses Issued (COPY) as to defendants Attorney General Jon C. Bruning, and Governor Michael O. Johanns. (KBJ) (Entered: 05/01/2003)
8 SUMMONS Returned Executed upon defendant Attorney General Jon C. Bruning on 4/30/2003. (KBJ) (Entered: 05/01/2003)
9 SUMMONS Returned Executed upon defendant Governor Michael O. Johanns on 4/30/2003. (KBJ) (Entered: 05/01/2003)
4 ATTORNEY LETTER by Clerk that Attorney Brian Chase has not registered for admittance to practice or registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (KBJ) (Entered: 05/01/2003)
5 ATTORNEY LETTER by Clerk that Attorney David S. Buckel has not registered for admittance to practice or registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (KBJ) (Entered: 05/01/2003)
6 ATTORNEY LETTER by Clerk that Attorney James D. Esseks has not registered for admittance to practice or registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (KBJ) (Entered: 05/01/2003)
7 ATTORNEY LETTER by Clerk that Attorney Tamara Lange has not registered for admittance to practice or registered for the system. If the requested action is not taken within fifteen (15) days of the date of this letter, this matter will be referred to the assigned magistrate judge for the entry of a show cause order. (KBJ) (Entered: 05/01/2003)
10 MOTION (request) to reissue summonses by Attorney Robert F. Bartle on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, and Nebraska Advocates for Justice and Equality (KBJ) (Entered: 05/01/2003)
11 Two Summons Issued (COPY) as to defendants Jon C. Bruning and Michael O. Johanns. (KBJ) (Entered: 05/09/2003)
12 SUMMONS (REISSUED per chambers) Returned Executed upon defendant Michael O. Johanns on 5/14/2003. (KBJ) (Entered: 05/15/2003)
13 SUMMONS (REISSUED per chambers)Returned Executed upon defendant Jon C. Bruning on 5/14/2003. (KBJ) (Entered: 05/15/2003)
14 APPLICATION/ORDER admitting pro hac vice Attorney David S. Buckel for Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality. Signed by Deputy Clerk on 5/14/2003. (KBJ) (Entered: 05/15/2003)
15 APPLICATION/ORDER admitting pro hac vice Attorney James D. Esseks for Plaintiffs ACLU Nebraska, Citizens for Equal Protection, and Nebraska Advocates for Justice and Equality. Signed by Deputy Clerk on 5/16/2003. (CS, ) (Entered: 05/16/2003)
16 APPLICATION/ORDER admitting pro hac vice Attorney Tamara Lange for Plaintiffs ACLU Nebraska, Citizens for Equal Protection, and Nebraska Advocates for Justice and Equality. Signed by Deputy Clerk on 5/16/2003. (CS, ) (Entered: 05/16/2003)

Case: 4:03-cv-3155 As of: 10/22/2012 08:08 PM CDT 5 of 10

05/22/2003 05/28/2003 05/28/2003 06/19/2003 06/20/2003 06/30/2003 06/30/2003 07/15/2003 07/21/2003 07/24/2003 07/30/2003
08/12/2003 08/13/2003 08/29/2003 09/09/2003 09/09/2003

17 APPLICATION/ORDER admitting pro hac vice Attorney Brian Chase for Plaintiffs ACLU Nebraska, Citizens for Equal Protection, and Nebraska Advocates for Justice and Equality. Signed by Deputy Clerk on 5/22/2003. (KBJ) (Entered: 05/27/2003)
18 MOTION for Extension of Time to File Answer by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns (McNair, Matthew) (Entered: 05/28/2003)
19 ORDER granting 18 Motion for Extension of Time to Answer. Answer Deadline set for 6/30/03 for defendants Jon Bruning and Michael Johanns. Signed by Deputy Clerk on 5/28/2003. (KBJ) (Entered: 05/28/2003)
20 SCHEDULING PACKET; Rule 26 Meeting Report Deadline set for 7/24/2003. Signed by Magistrate Judge Thomas D. Thalken on 6/19/2003. (PAV, ) (Entered: 06/19/2003)
21 Mail Returned as Undeliverable addressed to James D. Esseks at the wrong e−mail address of jessek@aclu.org regarding Scheduling Packet 20 . E−mail resent to jesseks@aclu.org. (KBJ) (Entered: 06/20/2003)
22 MOTION to Dismiss by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns (McNair, Matthew) (Entered: 06/30/2003)
23 BRIEF In Support of Motion to Dismiss 22 by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns (McNair, Matthew) (Entered: 06/30/2003)
24 MOTION to Extend time to serve a brief in response to defendants' motion to dismiss for 30 days, until 8/19/03 by Attorney Robert F. Bartle on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, and Nebraska Advocates for Justice and Equality (KBJ) (Entered: 07/16/2003)
25 ORDER granting 24 Plaintiff's Motion to Extend Time to Respond to 22 Defendant's Motion to Dismiss. Signed by Judge Joseph F. Bataillon on 7/21/2003. (SMS, ) (Entered: 07/21/2003)
26 REPORT of Rule 26(f) Planning Meeting filed by plaintiffs ACLU Nebraska, et al and defendants, Jon C. Bruning, et al.(KBJ) (Entered: 07/25/2003)
27 ORDER that the request for a stay of further proceedings pending the court's ruling on thedefendants' motion to dismiss 22 is granted. If the motion to dismiss is denied,within 10 working days following the court's ruling on the motion to dismiss, counsel forthe defendants shall initiate a telephone conference with the plaintiffs' counsel and theundersigned magistrate judge for the purpose of the further progression of the case. Signed by Magistrate Judge Thomas D. Thalken on 7/30/2003. (JAE, ). (Entered: 07/30/2003)
28 MOTION FOR EXTENSION of Brief by Agreement of Parties filed by Attorney Robert F. Bartle on behalf of Plaintiffs, ACLU Nebraska, Citizens for Equal Protection, and Nebraska Advocates for Justice and Equality in response to Defendant's MOTION to Dismiss 22 . (GJG, ) (Entered: 08/13/2003)
29 ORDER granting 28 Motion to Extend time to respond to 22 Defendants' Motion to Dismiss. Signed by Judge Joseph F. Bataillon on 8/13/2003. (SMS, ) (Entered: 08/13/2003)
30 BRIEF (Plaintiff's) in Opposition of Defendants' Motion to Dismiss 22 filed by Attorney Robert F. Bartle on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality (Attachments: # 1 Part 2 of 2)(GJG, ) (Entered: 08/29/2003)
31 MOTION for Leave To File a Reply Brief in Support of Their Motion to Dismiss by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns (McNair, Matthew) (Entered: 09/09/2003)
32 ORDER granting defendants' 31 Motion for Leave to file reply brief in support of 22 Motion to Dismiss; defendants to file reply brief on or before 9/22/2003. Signed by Judge Joseph F. Bataillon on 9/9/2003. (SMS, ) Modified on 9/10/2003 (SMS, )

Case: 4:03-cv-3155 As of: 10/22/2012 08:08 PM CDT 6 of 10

09/22/2003 09/29/2003 11/10/2003 11/12/2003 11/18/2003 12/03/2003 12/10/2003 12/10/2003 12/15/2003 02/27/2004 03/01/2004 04/07/2004
04/16/2004
04/29/2004

to correct date brief due. (Entered: 09/09/2003)
33 REPLY BRIEF In Support of Motion to Dismiss 22 by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns (McNair, Matthew) (Entered: 09/22/2003)
34 MOTION Motion for Oral Argument regarding Reply Brief 33 , MOTION to Dismiss 22 , Brief 23 , Brief, 30 by Attorney Amy A. Miller on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality (Miller, Amy) (Entered: 09/29/2003)
35 MEMORANDUM AND ORDER denying 22 Defendants' Motion to Dismiss. Signed by Judge Joseph F. Bataillon on 11/10/2003. (SMS, ) (Entered: 11/10/2003)
36 ORDER TO SHOW CAUSE that Attorney James D. Esseks is to register for the System. Show Cause Deadline set for 12/12/2003. Signed by Magistrate Judge Thomas D. Thalken on 11/12/2003. (JAE, ) (Entered: 11/12/2003)
37 ORDER that a telephone Planning Conference is set for 12/12/2003 03:00 PM before Magistrate Judge Thomas D. Thalken. Counsel for the defendants shall initiate the telephone conference. Signed by Magistrate Judge Thomas D. Thalken on 11/18/2003. (ADB) (Entered: 11/18/2003)
38 Defendants' ANSWER to Complaint by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns (McNair, Matthew) (Entered: 12/03/2003)
39 DISCLOSURE Rule 26 Disclosures by Attorney Amy A. Miller on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality (Miller, Amy) (Entered: 12/10/2003)
40 Certificate of Service of Initial Disclosures by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns (McNair, Matthew) (Entered: 12/10/2003)
41 ORDER that the parties shall submit a draft of a proposed stipulated record by 3/1/04; a telephone conference is set for 3/5/2004 at 10:00 AM before Magistrate Judge Thomas D. Thalken. Signed by Magistrate Judge Thomas D. Thalken on 12/15/2003. (JSF) (Entered: 12/15/2003)
42 Joint MOTION to Extend time for pretrial progression conference by Attorney Robert F. Bartle on behalf of Plaintiff Citizens for Equal Protection (Bartle, Robert) (Entered: 02/27/2004)
43 ORDER granting 42 Motion to Extend; the parties shall submit a draft of a proposed stipulated record and, if necessary, a detailed discovery plan by 4/1/04; a telephone conference will be held on 4/5/04 at 10:00 AM. Signed by Magistrate Judge Thomas D. Thalken on 3/1/2004. (JSF) (Entered: 03/01/2004)
44 ORDER that the parties will file a joint stipulation of facts with the court on or before April16, 2004. The parties will exchange affidavits proposed for use at trial with each other, andwill file those affidavits with the court on or before April 30, 2004. The parties will exchange any counter−affidavits proposed for use at trial witheach other, and will file those counter−affidavits with the court on or before May 14, 2004. Telephone Conference set for 5/28/2004 10:30 AM Central Daylight Time, before Magistrate Judge Thomas D. Thalken. Signed by Magistrate Judge Thomas D. Thalken on 4/7/2004. (JAE, ) (Entered: 04/07/2004)
45 Joint STIPULATION of Facts by Attorney Matthew W. McNair on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality, Defendants Jon C. Bruning, Michael O. Johanns (Attachments: # 1 Exhibit Exhibits 1−12# 2 Exhibit Exhibits 16−22# 3 Exhibit Exhibits 23−34# 4 Exhibit Exhibits 35−37)(McNair, Matthew) (Entered: 04/16/2004)
46 NOTICE of Filing and Serving Affidavits by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns (Attachments: # 1 Affidavit of Archbishop Elden Francis Curtiss# 2 Affidavit of Kay Orr# 3 Affidavit

Case: 4:03-cv-3155 As of: 10/22/2012 08:08 PM CDT 7 of 10

04/30/2004 05/14/2004 06/08/2004
06/30/2004 07/07/2004 07/07/2004
07/15/2004 07/15/2004 07/15/2004 07/15/2004 07/30/2004 07/30/2004

of Robert Valentine# 4 Affidavit of Jane Gronewold# 5 Affidavit of Jim Jones# 6 Affidavit of Jim Jensen# 7 Affidavit of L. Neal Erickson)(McNair, Matthew) (Entered: 04/29/2004)
47 AFFIDAVIT−Notice of Filing Plaintiffs' Affidavits by Attorney Amy A. Miller on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality. (Attachments: # 1)(GJG, ) (Entered: 04/30/2004)
48 NOTICE of Filing and Serving Counter−Affidavit by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns (Attachments: # 1 Affidavit)(McNair, Matthew) (Entered: 05/14/2004)
49 ORDER that unless otherwise ordered, a hearing will be held before Judge Joseph F.Bataillon on August 30, 2004, at 8:30 a.m. in Courtroom No. 3, Third Floor, Roman L.Hruska U.S. Courthouse, 111 South 18th Plaza, Omaha, Nebraska, for the purpose of rulingon the objections to the affidavits as set forth above and for the purpose of scheduling writtenarguments to conclude the case based upon a trial on the record. In Court Hearing set for 8/30/2004 08:30 AM in Courtroom 3 (Omaha) before Judge Joseph F. Bataillon. Signed by Magistrate Judge Thomas D. Thalken on 6/8/2004. (ADB) (Entered: 06/08/2004)
50 NOTICE of Filing and Serving Substituted Affidavits and Transcripts by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns (Attachments: # 1 Affidavit # 2 Affidavit # 3 Affidavit # 4 Exhibit # 5 Exhibit)(McNair, Matthew) (Entered: 06/30/2004)
51 Joint STIPULATION regarding Order,,, Set/Reset All Hearings,, 49 Regarding Pre Trial Dates by Attorney Amy A. Miller on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality, Defendants Jon C. Bruning, Michael O. Johanns (Miller, Amy) (Entered: 07/07/2004)
52 ORDER adopting 51 the Joint Stipulation of the parties. This Court's Order of June 8, 2004 49 , is hereby superseded. All parties shall file any objections to the affidavits on file together with anymemorandum in support of such objections on or before July 15, 2004. All parties shall file any response to the objections to the affidavits on filetogether with any memorandum in support of such response on or before July 30,2004. A hearing will be held before Judge Joseph F.Bataillon on August 30, 2004, at 8:30 a.m. in Courtroom No. 3, for the purpose ofruling on the objections to the affidavits and for the purpose of scheduling written arguments to conclude the case based upon a trial of the record. Signed by Magistrate Judge Thomas D. Thalken on 7/7/2004. (JAE, ) (Entered: 07/07/2004)
53 MOTION Consolidated Objections to Defendants' Evidence by Attorney Amy A. Miller on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality (Miller, Amy) (Entered: 07/15/2004)
54 BRIEF In support of Motion for Miscellaneous Relief 53 by Attorney Amy A. Miller on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality (Attachments: # 1 Chart of Plaintiffs Objections to Evidence)(Miller, Amy) (Entered: 07/15/2004)
55 OBJECTION To Plaintiffs' Evidence by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns (McNair, Matthew) (Entered: 07/15/2004)
56 BRIEF In Support of Objection 55 to Plaintiffs' Evidence by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns (McNair, Matthew) (Entered: 07/15/2004)
57 REPLY BRIEF to Plaintiffs' Consolidated Motion to Exclude by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns (McNair, Matthew) (Entered: 07/30/2004)
58 OBJECTION Responses to Defendants' Objections to Plaintiffs' Evidence by Attorney Amy A. Miller on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality (Miller, Amy)

Case: 4:03-cv-3155 As of: 10/22/2012 08:08 PM CDT 8 of 10

07/30/2004 08/30/2004
08/30/2004 09/02/2004 10/07/2004
10/14/2004 10/15/2004 10/22/2004
12/01/2004 12/15/2004 12/21/2004

(Entered: 07/30/2004)
59 BRIEF In Support of Plaintiffs Responses to Defendants' Objections to Evidence by Attorney Amy A. Miller on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality (Miller, Amy) (Entered: 07/30/2004)
60 Minute Entry for proceedings held before Judge Joseph F. Bataillon at Omaha, Nebraska.Hearing held on 8/30/2004 regarding objections to exhibits and evidence. Evidence by Plaintiff and Defendant. Briefing schedule discussed. Plaintiff's brief is due on or before October 15, 2004. Defendant's brief is due on or before December 1, 2004. Plaintiff's rebuttal is due on or before December 15, 2004. Any request for sur−rebuttal shall be made in the form of a motion. Objections are taken under advisement. Written order forthcoming. Courtroom Deputy: Kathy M. Griess. Court Reporter: Allan Kuhlman. Attorneys for Plaintiff: Amy A. Miller, Fred. B. Chase and Robert F. Bartle. Attorneys for Defendant: Dale A. Comer and Matthew W. McNair. Hearing Commenced: 8:45 a.m. Hearing Concluded: 9:10 a.m. Time in Court: 25 Minutes. THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. (KMG) (Entered: 08/30/2004)
61 EXHIBIT LIST from hearing held on August 30, 2004. (ADB) (Entered: 08/30/2004)
62 ORDER denying 53 &58 Plaintiffs' Objections to Evidence; denying 55 Defendants' Objections to Evidence; setting briefing schedule. Signed by Judge Joseph F. Bataillon on 9/2/2004. (SMS, ) (Entered: 09/02/2004)
63 TRANSCRIPT of Proceedings before Judge Bataillon, held on August 30, 2004 regarding Oral Argument. court reporter: Allan G. Kuhlman; Total Number of Billable Pages: 21. Total Number of Pages: 21. To purchase a copy of this transcript, please contact Allan G. Kuhlman at 402−661−7305. A party must file a Notice of Intent to Request Redaction within 5 business days. If a party fails to request redaction, the unredacted transcript attached to this entry will be made electronically available without redaction. (AGK, ). Modified on 10/22/2004 by removing the word unredacted as a Notice of Intent to Request for Redaction was not filed (KBJ). (Entered: 10/07/2004)
64 APPLICATION/ORDER admitting pro hac vice Attorney Sharon M. McGowan for Plaintiffs ACLU Nebraska, Citizens for Equal Protection and Nebraska Advocates for Justice and Equality. Signed by Deputy Clerk on 10/14/2004. (GJG, ) (Entered: 10/14/2004)
65 PLAINTIFF'S OPENING TRIAL BRIEF filed by Attorney Robert F. Bartle on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality (GJG, ) (Entered: 10/15/2004)
NOTICE of Docket Text Modification by Deputy Clerk regarding 63 TRANSCRIPT of Proceedings before Judge Bataillon, held on August 30, 2004 regarding Oral Argument. court reporter: Allan G. Kuhlman; Total Number of Billable Pages: 21. Total Number of Pages: 21. To purchase a copy of this transcript, please contact Allan G. Kuhlman at 402−661−7305. A party must file a Notice of Intent to Request Redaction within 5 business days. If a party fails to request redaction, the unredacted transcript attached to this entry will be made electronically available without redaction. (AGK, ). Modified on 10/22/2004 by removing the word unredacted as a Notice of Intent to Request for Redaction was not filed (KBJ) (Entered: 10/22/2004)
66 BRIEF by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns (McNair, Matthew) (Entered: 12/01/2004)
67 BRIEF Trial Reply Brief by Attorney Amy A. Miller on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality (Miller, Amy) (Entered: 12/15/2004)
68 MOTION Oral Argument by Attorney Amy A. Miller on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice

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12/22/2004
12/23/2004 05/12/2005 05/12/2005 06/09/2005
06/09/2005
06/09/2005
06/09/2005 06/10/2005 06/13/2005
06/15/2005 06/16/2005 06/24/2005 07/13/2005 08/01/2005 08/02/2005

and Equality (Miller, Amy) (Entered: 12/21/2004)
69 MOTION AMENDED Request for Oral Argument regarding MOTION Oral Argument 68 by Attorney Amy A. Miller on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality (Miller, Amy) (Entered: 12/22/2004)
70 ORDER denying 68 69 Motions for Oral Argument. Signed by Judge Joseph F. Bataillon on 12/23/2004. (SMS, ) (Entered: 12/23/2004)
71 MEMORANDUM AND ORDER declaring Section 29 of Nebraska Constitution unconstitutional; attorney fees and costs awarded to plaintiffs. Signed by Judge Joseph F. Bataillon on 5/12/2005. (SMS, ) (Entered: 05/12/2005)
72 JUDGMENT pursuant to the Memorandum and Order 71 judgment is entered in favor of the plaintiffs and against the defendants. Signed by Judge Joseph F. Bataillon on 5/12/2005. (JAE, ) (Entered: 05/13/2005)
73 NOTICE OF APPEAL regarding Judgment, Terminated Case 72 by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Michael O. Johanns, Dave Heineman, Jon C. Bruning, Dave Heineman. (McNair, Matthew) (Entered: 06/09/2005)
APPEAL fee paid by the Nebraska Attorney General's Office, with receipt number 406922 in the amount of $255.00 regarding Notice of Appeal to USCA, 73 . THIS IS A TEXT ONLY ENTRY. A PDF DOCUMENT IS NOT ATTACHED TO THIS ENTRY. (JAR) (Entered: 06/09/2005)
74 NOTIFICATION OF APPEAL AND NOA SUPPLEMENT by Clerk to USCA regarding Judgment, Terminated Case 72 , Notice of Appeal to USCA, 73 , Memorandum and Order 71 , Appeal Fee Paid. Notice of Appeal filed on 6/9/05 on behalf of all Defendants(KBJ) (Entered: 06/09/2005)
***Appeal Receipt of Notice of Appeal and supporting documents transmitted to USCA on: Thu Jun 9 13:29:13 CDT 2005 (KBJ, ) (Entered: 06/09/2005)
75 SCHEDULING LETTER from USCA − 8th Circuit as to Notice of Appeal to USCA, 73 ; Appellate Docket Number: 05−2604. Transcript Designation set for 7/20/2005. (Attachments: # 1 Transmittal Letter)(KBJ) (Entered: 06/10/2005)
76 MOTION for Attorney Fees by Attorney Amy A. Miller on behalf of Plaintiffs ACLU Nebraska, Citizens for Equal Protection, Nebraska Advocates for Justice and Equality (Attachments: # 1 Affidavit Robert Bartle# 2 Affidavit David S. Buckel affidavit# 3 Affidavit Fred Brian Chase Affidavit# 4 Affidavit Tamara Lange Affidavit# 5 Affidavit Sharon McGowan Affidavit# 6 Affidavit Amy Miller Affidavit# 7 Affidavit Alan Peterson Affidavit# 8 Affidavit Anna Rich Affidavit# 9 Affidavit Corey Stull Affidavit)(Miller, Amy) (Entered: 06/13/2005)
77 TRANSCRIPT SENT TO USCA − 8th Circuit regarding Transcript 63 . (ADB) (Entered: 06/15/2005)
78 REQUEST FOR TRANSCRIPT (McNair, Matthew) (Entered: 06/16/2005)
79 RECEIPT signed by clerk of the 8th Circuit Court of Appeals (05−2604) acknowledging receipt of the Transcript from hearing held 8/30/04. (KBJ) (Entered: 06/24/2005)
80 BRIEF In Response to Motion for Attorney Fees,, 76 by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Dave Heineman(McNair, Matthew) (Entered: 07/13/2005)
81 ORDER granting 76 Plaintiffs' Motion for Attorney Fees in the amount of $156,960.00 and costs in the amount of $271.70. Signed by Judge Joseph F. Bataillon on 8/1/2005. (SMS, ) (Entered: 08/01/2005)
82 NOTICE OF APPEAL (Amended) by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Dave Heineman. (McNair, Matthew) (Entered: 08/02/2005)

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08/02/2005 08/09/2005
08/09/2005 08/11/2005 07/14/2006
07/17/2006
07/31/2006 08/30/2006 09/29/2006 10/04/2006
10/04/2006 01/04/2007

83 MOTION to Stay Proceedings to Enforce Judgment Pending Appeal by Attorney Matthew W. McNair on behalf of Defendants Jon C. Bruning, Dave Heineman(McNair, Matthew) (Entered: 08/02/2005)
84 ORDER − This matter is before the court on defendants' unopposed Motion for Stay of Proceedings to Enforce Judgment Pending Appeal, Filing No. 83 . For good cause shown, the motion is granted and the enforcement of this court's order awarding attorney fees and costs to plaintiffs, Filing No. 81 , is stayed pending resolution of the appeal of this matter to the Eighth Circuit Court of Appeals. Signed by Judge Joseph F. Bataillon on 8/9/2005. (TJS) (Entered: 08/09/2005)
85 Transmittal Letter to USCA 8th Circuit (05−2604) of sending two copies of the Order on Motion for Attorney Fees 81 , Amended Notice of Appeal to USCA 82 , Order 84 , and certified docket sheet. (JAE, ) (Entered: 08/09/2005)
86 Letter by Clerk − USCA − has received certified copies of an amended notice ofappeal and docket entries from the Clerk of the United States DistrictCourt. We have filed the amended notice of appeal docketed in this court on 6/10/05. (TJS) (Entered: 08/11/2005)
87 COPY of Opinion of USCA − 8th Circuit (05−2604) regarding Notice of Appeal to USCA 73 , Notice of Appeal to USCA 82 ; The judgment of the district court is reversed and the case is remanded withdirections to dismiss Appellees' complaint with prejudice. Given our decision on themerits, Appellees are no longer "prevailing parties." The district court's award ofattorneys fees is therefore reversed. See Buckhannon Bd. &Care Home, Inc. v. W.Va. Dept. of Health &Human Resources, 532 U.S. 598, 604 (2001). (Attachments: # 1 Letter from Clerk)(PCV, ) (Entered: 07/14/2006)
88 Paper COPY of Opinion of USCA − 8th Circuit (05−2604) regarding Notice of Appeal to USCA 73 82 . The judgment of the district court is reversed and the case is remanded with directions to dismiss Appellees' complaint with prejudice. Given the circuit's decision on the merits, Appellees are no longer "prevailing parties." The district court's award of attorneys fees is therefore reversed. (Attachments: # 1 Transmittal Letter)(JAE, ) (Entered: 07/17/2006)
89 RECORD on appeal returned from USCA − 8th Circuit (05−2604) regarding Notice of Appeal to USCA 73 , Notice of Appeal to USCA 82 , returning the electronically generated transcript 63 to the district court. (JAE, ) (Entered: 07/31/2006)
90 COPY of Order from USCA − 8th Circuit (05−2604) that the petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied. (Attachments: # Letter from Clerk(1))(PCV, ) (Entered: 08/30/2006)
91 Letter by Clerk USCA−8th Circuit (05−2604) that the mandate is being sent to the district court regarding Notice of Appeal to USCA 73 , Notice of Appeal to USCA 82 . (ADB) (Entered: 10/02/2006)
92 CERTIFIED copy of Opinion of USCA − 8th Circuit (05−2604) regarding Notice of Appeal to USCA 82 . The judgment of the district court is reversed and the case is remanded with directions to dismiss Appellees' complaint with prejudice. Given the circuit's decision on the merits, Appellees are no longer "prevailing parties." The district court's award of attorneys fees is therefore reversed. (Attachments: # 1 Cover Letter)(GJG, ) (Entered: 10/04/2006)
93 MANDATE/JUDGMENT from USCA − 8th Circuit (05−2604) reversing the decision of the District Court regarding Notice of Appeal to USCA 82 . It is hereby ordered and adjudge that the judgment of the district court in this cause is reversed and the cause is remanded to the district court for proceedings consistent with the opinion 92 of this court. (GJG, ) (Entered: 10/04/2006)
94 JUDGMENT pursuant to the order of the Eighth Circuit, regarding Opinion (Certified Copy) of USCA, 92 , this case is dismissed with prejudice. Judgment is entered in favor of the defendants and against the plaintiffs. Ordered by Judge Joseph F. Bataillon. (PCV, ) (Entered: 01/04/2007)

 
 	  
455 F.3d 859 United States Court of Appeals,
Eighth Circuit.
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. | Submitted: Feb. 13, 2006. | Filed: July 14, 2006. | Rehearing and Rehearing En Banc
Denied Aug. 30, 2006.*
Attorneys and Law Firms
*861 Matt McNair, Deputy Attorney General (argued), Lincoln, NE (Dale A. Comer, *862 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 ThirtyFour (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.
*863 Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.
Opinion
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 samesex 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
[1] [2] 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.
[3] 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 *864 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.
[4] 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 satisfying strict judicial scrutiny. Evans v. Romer, 882 P.2d 1335 (Colo.1994). A dissent noted that “[t]he *865 Supreme Court of the United States has never held ... that the right to participate equally in the political process is a fundamental right.” Id. at 1359 (Erickson, J., dissenting).
After granting certiorari review, the Supreme Court affirmed but “on a rationale different from that adopted by the State Supreme Court.” 517 U.S. at 626, 116 S.Ct. 1620. The Supreme Court noted that the Colorado constitutional amendment “withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.” Id. at 627, 116 S.Ct. 1620. The Court reasoned that the amendment “fails, indeed defies,” conventional equal protection analysis because it “impos[es] a broad and undifferentiated disability on a single named group .... [and] its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects.” Id. at 632, 116 S.Ct. 1620. The Court then concluded that the amendment lacked a rational relationship to a legitimate governmental purpose:
It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of

persons undertaken for its own sake, something the Equal Protection Clause does not permit. Id. at 635, 116 S.Ct. 1620.
Relying primarily on Romer, Appellees argue that § 29 violates the Equal Protection Clause because it raises an insurmountable political barrier to same-sex couples obtaining the many governmental and private sector benefits that are based upon a legally valid marriage relationship. Appellees do not assert a right to marriage or same-sex unions. Rather, they seek “a level playing field, an equal opportunity to convince the people’s elected representatives that same-sex relationships deserve legal protection.” Citizens for Equal Protection, 368 F.Supp.2d at 985 n. 1. The argument turns on the fact that § 29 is an amendment to the Nebraska Constitution. Unlike statewide legislation restricting marriage to a man and a woman, a constitutional amendment deprives gays and lesbians of “equal footing in the political arena” because state and local government officials now lack the power to address issues of importance to this minority.2
The district court agreed, concluding “that Section 29 is indistinguishable from the Colorado constitutional amendment at issue in Romer.” 368 F.Supp.2d at 1002. In this part of its opinion, the district court purported to apply conventional, “rational-basis” equal protection analysis-“If a legislative classification or distinction neither burdens a fundamental right nor targets a suspect class, we will uphold it so long as it bears a rational relation to some legitimate [government] end.” Vacco v. Quill, 521 U.S. 793, 799, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997), quoting Romer, 517 U.S. at 631, 116 S.Ct. 1620. But the court in its discussion, 368 F.Supp.2d at 997-1005, applied the same strict scrutiny analysis applied by the Colorado Supreme Court, but not by the United States Supreme Court, in Romer. Like the Colorado Court, the district *866 court based its heightened scrutiny on Appellees’ “fundamental right of access to the political process.” Id. at 1003.
[5] As Supreme Court decisions attest, the level of judicial scrutiny to be applied in determining the validity of state legislative and constitutional enactments under the Fourteenth Amendment is a subject of continuing debate and disagreement among the Justices. Though the most relevant precedents are murky, we conclude for a number of reasons that § 29 should receive rational-basis review under the Equal Protection Clause, rather than a heightened level of judicial scrutiny.
While voting rights and apportionment cases establish the fundamental right to access the political process, it is not an absolute right. In a multi-tiered democracy, it is inevitable that interest groups will strive to make it more

difficult for competing interest groups to achieve contrary legislative objectives. This can be done, for example, by having the state legislature repeal a local ordinance, or by having the electorate adopt a constitutional amendment barring future legislation. As the Supreme Court said in upholding a state constitutional amendment in James v. Valtierra, 402 U.S. 137, 141-43, 91 S.Ct. 1331, 28 L.Ed.2d 678 (1971):

Provisions for referendums

demonstrate

devotion

to

democracy, not to bias,

discrimination, or prejudice.

Nonetheless, appellees contend that

Article XXXIV denies them equal

protection because ... it hampers

persons desiring public housing

from achieving their objective

when no such roadblock faces other

groups seeking to influence other

public decisions to their

advantage.... Under any such

holding, presumably a State would

not be able to require referendums

on any subject unless referendums

were required on all, because they

would always disadvantage some

group. And this Court would be

required to analyze governmental

structures to determine whether a

gubernatorial veto provision or a

filibuster rule is likely to

‘disadvantage’ any of the diverse

and shifting groups that make up

the American people.

Similarly, Justice Scalia’s discussion of the antipolygamy provisions in many state constitutions illustrates the chaos that would result if all enactments that allegedly deprive a group of “equal” political access must survive the rigors of strict judicial scrutiny. Romer, 517 U.S. at 648-51, 116 S.Ct. 1620 (Scalia, J., dissenting). No doubt for these reasons, although the majority opinion in Romer contained broad language condemning the Colorado enactment for making it “more difficult for one group of citizens than for all others to seek aid from the government,” 517 U.S. at 633, 116 S.Ct. 1620, the Court’s conclusion was that the enactment “lacks a rational relationship to legitimate state interests.” Id. at 632, 116 S.Ct. 1620. That is the core standard of rationalbasis review.
[6] If sexual orientation, like race, were a “suspect classification” for purposes of the Equal Protection Clause, then Appellees’ focus on the political burden erected by a constitutional amendment would find support

in cases like Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969), and Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982). But the Supreme Court has never ruled that sexual orientation is a suspect classification for equal protection purposes. The Court’s general standard is that rational-basis review applies “where individuals in the group affected by a law have distinguishing characteristics relevant to interests the *867 State has the authority to implement.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 441, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). As we will explain, that is the case here, and therefore Appellees are not entitled to strict scrutiny review on this ground.
[7] [8] Rational-basis review is highly deferential to the legislature or, in this case, to the electorate that directly adopted § 29 by the initiative process. “In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rationalbasis for the classification.” F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Thus, the classification created by § 29 and other laws defining marriage as the union between one man and one woman is afforded a “strong presumption of validity.” Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). The Equal Protection Clause “is not a license for courts to judge the wisdom, fairness, or logic of [the voters’] choices.” Beach Communications, 508 U.S. at 313, 113 S.Ct. 2096.
Our rational-basis review begins with an historical factthe institution of marriage has always been, in our federal system, the predominant concern of state government. The Supreme Court long ago declared, and recently reaffirmed, that a State “has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved.” Pennoyer v. Neff, 95 U.S. 714, 73435, 24 L.Ed. 565 (1878), quoted in Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). This necessarily includes the power to classify those persons who may validly marry. “Surely, for example, a State may legitimately say that no one can marry his or her sibling, that no one can marry who is not at least 14 years old, that no one can marry without first passing an examination for venereal disease, or that no one can marry who has a living husband or wife.” Zablocki v. Redhail, 434 U.S. 374, 392, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978) (Stewart, J., concurring). In this constitutional environment, rational-basis review must be particularly deferential.

The State argues that the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in “steering procreation into marriage.” By affording legal recognition and a basket of rights and benefits to married heterosexual couples, such laws “encourage procreation to take place within the socially recognized unit that is best situated for raising children.” The State and its supporting amici cite a host of judicial decisions and secondary authorities recognizing and upholding this rationale. The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a “responsible procreation” theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot. See Hernandez v. Robles, No. 86, 2006 N.Y. Slip Op 5239 at 5-6, ---N.Y.2d ----, ----, --- N.Y.S.2d ----, --N.E.2d ----, 2006 WL 1835429 (N.Y.Ct.App. Jul. 6, 2006); Morrison v. Sadler, 821 N.E.2d 15, 24-26 (Ind.Ct.App.2005). Whatever our personal views regarding this political and sociological debate, we cannot conclude that the State’s justification “lacks a rational relationship *868 to legitimate state interests.” Romer, 517 U.S. at 632, 116 S.Ct. 1620.3
The district court rejected the State’s justification as being “at once too broad and too narrow.” Citizens for Equal Protection, 368 F.Supp.2d at 1002. But under rationalbasis review, “Even if the classification ... is to some extent both underinclusive and overinclusive, and hence the line drawn ... imperfect, it is nevertheless the rule that ... perfection is by no means required.” Vance v. Bradley, 440 U.S. 93, 108, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979). Legislatures are permitted to use generalizations so long as “the question is at least debatable.” Heller, 509 U.S. at 326, 113 S.Ct. 2637 (quotation omitted). The package of government benefits and restrictions that accompany the institution of formal marriage serve a variety of other purposes. The legislature-or the people through the initiative process-may rationally choose not to expand in wholesale fashion the groups entitled to those benefits. “We accept such imperfection because it is in turn rationally related to the secondary objective of legislative convenience.” Vance, 440 U.S. at 109, 99 S.Ct. 939.
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. See Romer, 517 U.S. at 626, 633,

116 S.Ct. 1620. 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. Id. at 632, 116 S.Ct. 1620.
Appellees argue that § 29 does not rationally advance this purported state interest because “prohibiting protection for gay people’s relationships” does not steer procreation into marriage. This demonstrates, Appellees argue, that § 29’s only purpose is to disadvantage gay people. But the argument disregards the expressed intent of traditional marriage laws-to encourage heterosexual couples to bear and raise children in committed marriage relationships. Appellees attempt to isolate § 29 from other state laws limiting marriage to heterosexual couples. But as we have explained, there is no fundamental right to be free of the political barrier a validly enacted constitutional amendment erects. If the many state laws limiting the persons who may marry are rationally related to a legitimate government interest, so is the reinforcing effect of § 29. The barrier created by § 29 was enough to confer standing, but Appellees’ *869 equal protection argument fails on the merits.
III. Bill of Attainder
[9] The district court also concluded “that Section 29 violates the Bill of Attainder Clause by singling out gays and lesbians for legislative punishment.” 368 F.Supp.2d at 1005.4 The State argues that § 29 is not a bill of attainder. We agree.
[10] Bills of attainder are “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.” United States v. Lovett, 328 U.S. 303, 315, 106 Ct.Cl. 856, 66 S.Ct. 1073, 90 L.Ed. 1252 (1946).5 “To rise to the level of ‘punishment’ ... harm must fall within the traditional meaning of legislative punishment, fail to further a non-punitive purpose, or be based on a [legislative] intent to punish.” Planned Parenthood of Mid-Mo. v. Dempsey, 167 F.3d 458, 465 (8th Cir.1999), citing Nixon, 433 U.S. at 473, 97 S.Ct. 2777, and Selective Serv. Sys. v. Minn. Pub. Interest Research Group, 468 U.S. 841, 852, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984). Although the Supreme Court has broadened the historical bill of attainder concept of punishment, it does not include “every Act of Congress or the States that legislatively burdens some persons or groups but not all

other plausible individuals.” Nixon, 433 U.S. at 471, 97 S.Ct. 2777; see Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960) (“the mere denial of a noncontractual governmental benefit” is not punishment).
Echoing its equal protection analysis, the district court determined that § 29 inflicts punishment because it “effectively disenfranchises lesbian, gay and bisexual people and their supporters as they can no longer petition their representatives and city and local governments for legislative changes that would protect their relationship, agreements, and interests.” 368 F.Supp.2d at 1006. This political disadvantage is certainly not punishment in the historical bill of attainder sense. See Nixon, 433 U.S. at 474, 97 S.Ct. 2777 (imprisonment, banishment, punitive confiscation of property, removal from employment or profession). And as our rational-basis discussion makes clear, the political harm to Appellees’ members is not punishment in the functional sense because it serves the nonpunitive purpose of steering heterosexual procreation into marriage, a purpose that negates any suspicion that the supporters of § 29 were motivated solely by a desire to punish disadvantaged groups.
The district court stated that “the Bill of Attainder analysis dovetails with the ... Equal Protection issues in this case.” 368 F.Supp.2d at 1008 n. 23. This reflects an error of law because the Supreme Court has cautioned that the Bill of Attainder Clause “was not intended to serve as a variant of the equal protection doctrine.” Nixon, 433 U.S. at 471, 97 S.Ct. 2777. On this record, we conclude that Appellees’ bill of attainder claim is without merit.
*870 IV. First Amendment
[11] [12] In addition to upholding Appellees’ equal protection and bill of attainder claims, the district court ruled, sua sponte, “that the deprivation occasioned by the passage of Section 29 is the deprivation of the right to associational freedom protected by the First Amendment ... and the right to petition the government for redress of grievances, which encompasses the right to participate in the political process, also protected by the First Amendment.” Citizens for Equal Protection, 368 F.Supp.2d at 989. The court never clarified whether it was holding that § 29 violates the First Amendment as applied to the States.
Appellees did not raise a First Amendment claim in the district court or on appeal. In any event, if the question is properly before us, we conclude that § 29 does not violate

the First Amendment because (i) it “does not ‘directly and substantially’ interfere with appellees’ ability to associate” in lawful pursuit of a common goal, and (ii) it seems “exceedingly unlikely” it will prevent persons from continuing to associate. Lyng v. Int’l Union, 485 U.S. 360, 364-66, 108 S.Ct. 1184, 99 L.Ed.2d 380 (1988). The district court cited no case supporting its suggestion that the First Amendment right “to petition the Government for a redress of grievances” is violated by an enactment that makes it more difficult for a group with full access to the political process to successfully advocate its views. The First Amendment guarantees the right to advocate; it does not guarantee political success.
The district court’s opinion suggests that its discussion of First Amendment interests was intended to capture useful First Amendment principles. The court noted that a statute infringing First Amendment rights is subject to strict scrutiny. 368 F.Supp.2d at 989 n. 8. Though the court claimed it did not reach the issue, it applied what we conclude was heightened scrutiny analysis in the equal protection portion of its opinion. As we have explained, this was error because § 29 is subject to rational-basis review. The district court further noted that “a First Amendment deprivation subjects the challenged enactment to examination for vagueness and overbreadth.” Id. at 995. The court then invalidated § 29 under the Equal Protection Clause in part for the potential overbreadth of its second sentence, id. at 1004-05, ignoring the fact that overbreadth analysis is inconsistent with rational-basis review. This was improper. Indeed, even when First Amendment interests are potentially affected, “facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); see Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). Whether the second sentence might be given a limiting construction is an issue ill-suited to facial challenge.
V. Conclusion
In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson, 409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65 (1972), when faced with a Fourteenth Amendment challenge to a decision by the

Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed “for want of a substantial federal question.” *871 (Emphasis added.) There is good reason for this restraint. As Judge Posner has observed:
This is not to say that courts should refuse to recognize a constitutional right merely because to do so would make them unpopular. Constitutional rights are, after all, rights against the democratic majority. But public opinion is not irrelevant to the task of deciding whether a constitutional right exists.... If it is truly a new right, as a right to same-sex marriage would be .... [judges] will have to go beyond the technical legal materials of decision and consider moral, political, empirical, prudential, and institutional issues, including the public acceptability of a decision recognizing the new right.

Marriage? And If So. Who Should Decide?, 95 Mich. L.Rev. 1578, 1585 (1997).
[13] As we have explained, Appellees’ attempt to isolate § 29 from laws prohibiting same-sex marriage because it is a state constitutional amendment fails. If there is no constitutional right to same-sex marriage, that is, if a statutory prohibition satisfies rational-basis review, then § 29 likewise survives rational-basis review. We hold that § 29 and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.
The judgment of the district court is reversed and the case is remanded with directions to dismiss Appellees’ complaint with prejudice. Given our decision on the merits, Appellees are no longer “prevailing parties.” The district court’s award of attorneys fees is therefore reversed. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Resources, 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).
	  

Richard A. Posner, Should There Be Homosexual

Footnotes

*

Judge Riley and Judge Melloy did not participate in the consideration or decision in this matter.

1

Amicus briefs supporting the State were submitted by certain members of the Nebraska Legislature; the Nebraska Family Council;

the Nebraska Catholic Conference, et al; eleven other States; Alliance for Marriage, Inc.; the American Center for Law & Justice

Northeast, Inc.; American Family Association, Inc.; Focus on the Family and Family Research Council; Liberty Counsel; The

National Legal Foundation; the Thomas More Law Center; thirty-four law professors; and United Families International and The

Center for Arizona Policy. Amicus briefs supporting Appellees were submitted by the National Association of Social Workers and

its Nebraska Chapter; Nebraska attorney Susan Ann Koenig; the American Psychological Association; and Certain Chapters of

Parents, Families & Friends of Lesbians & Gays. The court appreciates their participation.

2

Constitutional provisions that prohibit certain activities disadvantage the class of persons who wish to engage in the activity. For

example, Article III, § 24, of the Nebraska Constitution forbids “games of chance.” Does § 24 deny casino operators equal

protection because they, unlike other businesses, must repeal a constitutional amendment to legalize the activities they wish to

conduct? Note, too, that the equal-access theory urged by Appellees would likewise apply to a state statute that limits the policies

and laws municipalities may adopt. See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 477, 102 S.Ct. 3187, 73 L.Ed.2d 896

(1982).

3

When the Supreme Court invalidated a state law criminalizing sodomy in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156

L.Ed.2d 508 (2003), only Justice O’Connor relied on the Equal Protection Clause, rather than the substantive component of the

Due Process Clause. Of particular relevance to this case, Justice O’Connor concluded that moral disapproval of private, consensual

homosexual conduct “is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause,” but she

expressly noted that “other reasons exist [for the State] to promote the institution of marriage beyond mere moral disapproval of an

excluded group.” 539 U.S. at 582, 585, 123 S.Ct. 2472 (O’Connor, J., concurring). The Lawrence majority, too, was careful to note

that the Texas statute at issue “does not involve whether the government must give formal recognition to any relationship that

homosexual persons seek to enter.” Id. at 578, 123 S.Ct. 2472.

4

The court cited Art. I, § 9, cl. 3, of the Constitution, a section that applies only to Congress. We assume the court meant to cite Art.

I, § 10, which bars the States from passing bills of attainder. The two provisions are construed identically. See Crain v. City of

Mountain Home, 611 F.2d 726, 728-29 (8th Cir.1979); Kerr-McGee Chem. Corp. v. Edgar, 837 F.Supp. 927, 934 n. 6

(N.D.Ill.1993).

5

The Supreme Court has frequently defined a bill of attainder as “a law that legislatively determines guilt and inflicts punishment”

without a judicial trial. Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), and cases cited. If

a legislative determination of “guilt” is required, § 29 is clearly not a bill of attainder. But we will assume that punishment is the

critical issue.