UPDATE Friday evening: The Tennessee Supreme Court, in a decision that can be found here, ruled that individuals who had challenged a proposed ballot measure on a state constitutional amendment to bar gay marriage did not have standing to sue. The ruling that the challengers had not shown that they would be harmed by having the amendment appear on the ballot on Nov. 7 was based solely on state law.

A ruling by the Eighth Circuit Court on Friday, rejecting a constitutional challenge to a ban on same-sex marriage in Nebraska by the voters of that state, set up a potential case for Supreme Court review — provided supporters of gay marriage are willing to test it (and that may be doubtful). The ruling contrasts with a recent decision of New York’s highest state court against gay marriage, which was confined to state law questions. Similarly, two rulings by Massachusetts’ highest court — one allowing gay marriage under the state constitution, the other rejecting a challenge to a ballot measure to undo that ruling — were based on state law only.

In a unanimous decision in Citizens for Equal Protection et al., v. Bruning, et al. (Circuit docket 05-2604), the three-judge panel rejected equal protection, bill-of-attainder and First Amendment challenges to the state constitutional amendment. That amendment, Article I Section 29, says that “only marriage beween a man and a woman shall be valid or recognized in Nebraska,” and goes on to ban gay civil unions, doimestic partnerships, “or other similar same-sex relationships.” That makes it one of the most sweeping bans in the nation on same-sex unions.

Although the Nebraska case was pursued in federal court on federal constitutional grounds, most of the recent litigation on the gay marriage issue has been based upon state law questions. That reflects a basic strategy of leaders of the gay rights movement to avoid a text of federal constitutional issues, before the nation has had some experience with gay marriage and its acceptance might be more widespread. It is unclear, though, whether the leaders would be able to discourage an appeal to the Supreme Court if those who brought the Nebraska challenge wish to attempt such an appeal.

In a decision written by Chief Circuit Judge James B. Loken (a one-time law clerk to Justice Byron R. White), the Eighth Circuit overturned a federal judge’s decision striking down the Nebraska state amendment. It found that the ban should be judged under equal protection analysis only by rational basis review, and concluded that the legislature had sufficient reason to steer child-bearing into marriage. Since only opposite-sex couples can procreate, and since only opposite-sex couples can produce children “by accident,” the legislature had a legitimate state interest in confining marriage to them, the Court indicated.

“Whatever our personal views regarding this political and sociological debate, we cannot conclude that the state’s justification lacks a rational relationship to legitimate state interests,” Judge Loken wrote.

The Court refused to apply to the Nebraska enactment the Supreme Court’s 1996 decision in Romer v. Evans, striking down a Colorado state constitutional amendment forbidding legislation to create rights for homosexuals. The Colorado provision, the Eighth Circuit said, was invalided because of its “unprecedented scope,” repealing all existing and barring all future preferential policies based on homosexual acts and relationships. The Nebraska amendment, it added, is not so broad that its enactment could be explained only by animus toward same-sex couples.

The panel easily disposed of the other constitutional challenges to the state ban. It found that the measure was not an invalid bill of attainder, because it was not designed to punish homosexuals. The Court turned down a freedom-of-association claim and a right-to-petition claim under the First Amendment — claims not raised by the parties, but raised and decided by the District judge. If those issues were before it, the Eighth Circuit said, it would find they had no merit.

Judge Loken concluded: “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 Equjal Protection Clause or any other provision of the United States Constitution.” The judge went on to praise the Supreme Court for what he called its “restraint” in finding the lack of a substantial federal constitution in a state ban in Minnesota on marriage licenses for same-sex couples — the summary dismissal in Baker v. Nelson in 1972.

(Thanks to Howard Bashman of How Appealing blog for the alert to the Eighth Circuit ruling.)

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