Two more today, one in Tennessee apparently letting an anti-gay-marriage state constitutional amendment go to the ballot and one in the Eighth Circuit reversing a district judge's ruling that Nebraska's gay-marriage ban is unconstitutional. That makes five losses in one week.
The Eighth Circuit decision, which can be read here, is especially important. It's significant because it reverses a district court decision that opponents of gay marriage, among them my friends Maggie Gallagher and BYU law professor Lynn Wardle, the Senate Republican Policy Committee, and many others, had relied on heavily as part of the "judicial activism" justification for passing a federal constitutional amendment. Very few constitutional law experts I know believed the district court opinion would be upheld, but that did not stop amendment supporters from using it to goad Congress and the public.
The Eighth Circuit opinion is also significant because it appears to contain very broad language rejecting same-sex marriage claims. This is especially curious because the litigants had not asked the federal court to force Nebraska to recognize gay marriage; they had only asked the courts to hold that Nebraska's state constitutional amendment, which seems to ban much more than gay marriage, was too broad. Not content to reject just that claim, the Eighth Circuit seems to have taken it upon itself to reject gay-marriage claims generally. It holds that only rational basis review applies to Nebraska's definition of marriage and that the state has a rational basis supporting the definition, including interests in children very much like those sustained by the New York Court of Appeals last week.
The Eighth Circuit opinion ends with a quote from Judge Richard Posner in a law review article nine years ago, arguing that for prudential reasons federal courts should be especially careful about recognizing "new rights" broadly opposed by the public.
My hunch is that, if asked, the Supreme Court will deny cert in the Eighth Circuit case.
Gay-marriage litigants will be deeply disappointed by this string of losses, especially the New York and Eighth Circuit rulings. But perhaps the more excitable elements of the anti-gay-marriage movement will calm down just a bit.