Saturday, July 15, 2006

Would Virginia's proposed same-sex marriage amendment pass muster under the federal constitution

Today the Eighth Circuit ruled in Citizens for Equal Protection v. Bruning that a district court erred in holding that the same-sex amendment to the Nebraska constitution was unconstitutional.

The language of the Nebraska amendment is perhaps more open-ended that proposed amendment in Virginia, as it provides:

"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 proposed Virginia amendment provides:

"That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions.

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage."

The similarity between these two amendments is the use of the word "other" leaves open their potential breadth of application.

Besides the briefs of the appellants (here and here) and the brief of the appellees, many amicus briefs were filed in the Nebraska case, and in the Eighth Circuit briefs are posted online, so here are a few worth reading:

Supporting the appellants in arguing the amendment is constitutional -

Alliance for Marriage, Inc.
Eleven States (IN, AL, AR, CO, FL, KS, MI, MO, ND, SD, TX)
Focus on the Family and Family Research Council
Liberty Counsel
The National Legal Foundation
Nebraska Family Council
Some law professors (including a couple from Regent, but nobody famous)
Some Nebraska legislators
Thomas More Law Center
United Families International

Supporting the appellees in arguing the amendment is unconstitutional -

American Psychological Association

The National Association of Social Workers
A Nebraska lawyer

I must confess that I don't know much about the judges of the Eighth Circuit, and didn't recognize the names of any of the judges on the panel, so I looked them up. One was Chief Judge Loken, who wrote the opinion. According to his FJC biography, he went to Harvard Law, clerked for Justice White, worked in the Nixon White House, and was appointed by President George H.W. Bush. Another member of the panel is Pasco Middleton Bowman II, of whom it says here that he was born in Virginia, graduated from Bridgewater College and U.Va. Law, and served as dean of the law schools at Wake Forest and UMKC. (If you google Judge Bowman, you discover quickly the name of his most famous (or infamous) law clerk.) The third member of the panel is Lavenski Smith, of whom it says here that he was born in Hope, Arkansas, got his two degrees from the University of Arkansas, went to worked for four years as a legal aid lawyer in Northwest Arkansas, served briefly on the state Supreme Court, and was appointed by President George W. Bush. Judge Smith was confirmed by a vote of 93-3, with only Senators Wellstone, Feinstein, and Dayton opposed.

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