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. ...
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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
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