Skip to main content

Throwback Thursday: Did 8th Cir. Already Rule on Gay Marriage Bans?

By William Peacock, Esq. on November 13, 2014 | Last updated on March 21, 2019

Last week, a federal district court in Missouri joined a chorus of state courts in striking down the state's ban on gay marriage. In doing so, that court set aside precedent from 2006 that many regarded as a controlling opinion on same-sex marriage bans: Citizens for Equal Protection v. Bruning, an Eighth Circuit opinion upholding Nebraska's ban.

Judge Ortrie D. Smith of the U.S. District Court for the Western District of Missouri distinguished Bruning by classifying it as a political right-of-access case, rather than a case about a fundamental right to same-sex marriage.

Was he right? And what impact does Bruning have today, post-Windsor?

This Is a Political Access Case ... Sort Of

Using Romer v. Evans, the appellees in Bruning argued that Nebraska's constitutional amendment violated the Equal Protection Clause because it "raised an insurmountable political barrier to same-sex couples obtaining the many governmental and private sector benefits that are based upon legally valid marriage relationships."

Pushing the Romer argument further, they argued that the "amendment deprive[d] 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."

Alas, despite the strong Romer precedent, the challenge failed. After holding that rational basis was the appropriate standard because the Supreme Court had not yet made sexual orientation a protected class, the Eighth Circuit explained:

"The Colorado enactment repealed all existing and barred all future preferential policies based on 'orientation, conduct, practices, or relationships.'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 ... Here, Section 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."

Every Bad Argument ... Upheld

Rational basis is a forgiving mistress. And since the Supreme Court hadn't (yet?) set a higher standard of protection for sexual preference-based discrimination, the Eighth Circuit held that rational basis was the test that applied here. Enter the "procreation" arguments:

  • "[S]teering procreation into marriage."
  • "[E]ncourage procreation to take place within the socially recognized unit that is best situated for raising children."
  • "[T]he traditional notion that two committed heterosexuals are the optimal partnership for raising children..."
  • "[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."

"Whatever our personal views regarding this political and sociological debate," the court continued, "We cannot conclude that the State's justification 'lacks a rational relationship to legitimate state interests.'"

Even the Baker v. Nelson one-liner about "want of a substantial federal question" made a cameo.

Was the District Court Right?

It seems so. The District Court took the easiest possible route to overturn the Missouri gay marriage ban by avoiding the Equal Protection issue altogether. By dismissing Windsor as unhelpful to either side, and noting that the Eighth Circuit had already held that Equal Protection principles weren't violated by Nebraska's ban, it left that court with one other path: gender-based discrimination.

Gender-based discrimination arguments against same-sex marriage bans hadn't been touched by the Eighth Circuit yet. Now, they will be.

Related Resources:

Copied to clipboard