University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Citizens for Equal Protection v. Bruning PB-NE-0002
Docket / Court 4:03-cv-03155 ( D. Neb. )
State/Territory Nebraska
Case Type(s) Public Benefits / Government Services
Special Collection Same-Sex Marriage
Attorney Organization ACLU Chapters (any)
Lambda Legal
Case Summary
On April 30, 2003, LGBT advocacy organizations, represented by Lambda Legal and the ACLU, filed a lawsuit in the U.S. District Court for the District of Nebraska, against the Attorney General of Nebraska challenging the federal constitutionality of Article I, Section 29 of the Nebraska Constitution. ... read more >
On April 30, 2003, LGBT advocacy organizations, represented by Lambda Legal and the ACLU, filed a lawsuit in the U.S. District Court for the District of Nebraska, against the Attorney General of Nebraska challenging the federal constitutionality of Article I, Section 29 of the Nebraska Constitution. 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." The plaintiffs sought to have Section 29 declared unlawful as a denial of equal protection and a bill of attainder.

On June 30, 2003, the Attorney General filed a motion to dismiss, arguing that the plaintiffs lacked standing, the case was unripe, and the cause for action for bill of attainder should be dismissed. The District Court (Judge Joseph F. Bataillon) denied the motion on November 10, 2003. Citizens for Equal Protection, Inc., v. Bruning, 290 F.Supp.2d 1004.

On May 12, 2005, the Court ruled that Section 29 violated the Constitution of the United States. Citizens for Equal Protection, Inc., v. Bruning, 368 F.Supp.2d 980. The Court first found that Section 29 deprived same-sex couples of the right to associational freedom and the right to participate in the political process, both protected by the First Amendment, and the Due Process Clause of the Fourteenth Amendment. Finding no rational relationship between Section 29 and any legitimate state interest, the Court held that Section 29 violated the Equal Protection Clause of the Fourteenth Amendment. Finally, the Court concluded that Section 29 amounts to punishment by legislation as it operates to prohibit persons in same-sex relationships from working to ever obtain governmental benefits or legal recognition, and thus was an unconstitutional bill of attainder. The Court permanently enjoined the enforcement of Section 29 and on August 1, 2005, granted the plaintiffs' motion for attorneys fees pursuant to 42 U.S.C. § 1988.

The Attorney General filed a notice of appeal on June 9, 2005. On July 14, 2006, the United States Court of Appeals for the Eighth Circuit (Judge James B. Loken) reversed the District Court on all three of its conclusions, as well as the award of the plaintiffs' attorneys fees. Citizens for Equal Protection v. Bruning, 455 F.3d 859. The Court held that sexual orientation was not a suspect classification and thus Section 29 was not entitled to be subjected strict scrutiny. Under the alternative standard of rational basis review, the Court held Section 29 did not violate the Equal Protection Clause. The Court found the bill of attainder claim to be without merit, and found that Section 29 did not violate the First Amendment because it does not directly and substantially interfere with plaintiffs' ability to associate in pursuit of a common goal, and it seems unlikely it will prevent persons from continuing to associate.

The plaintiffs sought rehearing en banc; the Eighth Circuit denied that motion on August 30, 2006. The plaintiffs did not file a petition for writ of certiorari in the U.S. Supreme Court, and the case was dismissed with prejudice on January 4, 2007.

Darren Miller - 10/26/2012
Claire Lally - 02/22/2015


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Issues and Causes of Action
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Issues
Affected Gender
Female
Male
Constitutional Clause
Due Process
Equal Protection
Freedom of speech/association
Defendant-type
Jurisdiction-wide
Discrimination-basis
Sexual orientatation
General
Gay/lesbian/transgender
Marriage
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Plaintiff Type
Private Plaintiff
Causes of Action Declaratory Judgment Act, 28 U.S.C. § 2201
42 U.S.C. § 1983
Defendant(s) State of Nebraska
Plaintiff Description LGBT advocacy organizations
Indexed Lawyer Organizations ACLU Chapters (any)
Lambda Legal
Class action status sought No
Class action status granted No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Form of Settlement None on record
Order Duration not on record
Case Closing Year 2007
Case Ongoing No
Additional Resources
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Case Studies Limited Partnership
http://www.limitedpartnershipmovie.com/
By: Thomas G. Miller
[ Detail ] [ External Link ]

  United States Government says L.A. Gay Couple’s 1975 Marriage is Valid
The Pride L.A.
Written: Jun. 07, 2016
By: Troy Masters
[ Detail ] [ External Link ]

Docket(s)
4:03-cv-3155 (D. Neb.) 01/04/2007
PB-NE-0002-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Complaint 04/30/2003
PB-NE-0002-0004.pdf | Detail
Document Source: Westlaw
U.S. District Court Order Denying Defendant's Motion to Dismiss 11/10/2003 (290 F.Supp.2d 1004) (D. Neb.)
PB-NE-0002-0003.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
U.S. District Court (D. Neb.) Opinion 05/12/2005 (368 F.Supp.2d 980) (D. Neb.)
PB-NE-0002-0002.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Eighth Circuit Court of Appeals Opinion 08/30/2006 (455 F.3d 859)
PB-NE-0002-0001.pdf | WESTLAW| LEXIS | Detail
Document Source: Westlaw
Judges Bataillon, Joseph F. (D. Neb.)
PB-NE-0002-0002 | PB-NE-0002-0003 | PB-NE-0002-9000
Loken, James B. (Eighth Circuit)
PB-NE-0002-0001
Thalken, Thomas D. (D. Neb.) [Magistrate]
PB-NE-0002-9000
Monitors/Masters None on record
Plaintiff's Lawyers Bartle, Robert F. (Nebraska)
PB-NE-0002-0004 | PB-NE-0002-9000
Buckel, David S. (New York)
PB-NE-0002-0004 | PB-NE-0002-9000
Chase, Fred B (Texas)
PB-NE-0002-0004 | PB-NE-0002-9000
Esseks, James Dixon (New York)
PB-NE-0002-0004 | PB-NE-0002-9000
Lange, Tamara (California)
PB-NE-0002-0004 | PB-NE-0002-9000
McGowan, Sharon M. (District of Columbia)
PB-NE-0002-9000
Miller, Amy A. (Nebraska)
PB-NE-0002-0004 | PB-NE-0002-9000
Defendant's Lawyers Comer, Dale A. (Nebraska)
PB-NE-0002-9000
McNair, Matthew (Nebraska)
PB-NE-0002-9000
Other Lawyers None on record

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