BREAKING: Federal appeals court weighs in on same-sex marriage

The Eighth Circuit has concluded that Nebraska's same-sex marriage amendment should be subject to rational basis review and that the state's refusal to recognize same-sex marriages does not violate the Equal Protection Clause.

It decided this in 2006 (PDF).

One could be forgiven for not knowing that this case, Citizens for Equal Protection v. Bruning, exists. Much commentary today evaluates the "race" to be the first court of appeals to address the issue, as circuits like the Fourth and Tenth have heard oral argument and consider similar cases. Some pundits have wondered aloud whether federal courts would simply be unanimous in their holdings on marriage amendments and that the Supreme Court might never need to weigh in. Indeed, not a single federal case decided since United States v. Windsor (PDF) and Hollingsworth v. Perry (PDF) has cited the existing law in the Eighth Circuit. (The court also concluded that the law was not a bill of attainder and that the law did not violate the First Amendment.)

The Ninth Circuit distinguished Bruning in Perry v. Brown, concluding that California's same-sex marriage amendment left intact other laws concerning same-sex couples' family formation and childrearing, unlike Nebraska's; and that Nebraska's law did not revoke an existing benefit, unlike California's. (The Supreme Court later vacated Perry in Hollingsworth.) And a dissenting judge in the Second Circuit discussed Bruning in the Windsor opinion.

(A few other courts have cited the opinion for some of its other discussion, including its Eleventh Amendment analysis.)

It might be the case that this Eighth Circuit case has not garnered the attention of any of the federal courts addressing same-sex marriage litigation because it has been a different circuit, and its opinion serves only as persuasive (instead of mandatory) authority. But the lower courts certainly are in tune with how other district courts have handled same-sex marriage litigation, regularly citing other federal district courts, and it would seem that a federal appellate court weighing in on the issue with a non-vacated opinion might be the kind of law one would similarly expect to be cited, even if to be distinguished.

Or, it might be that because the Eighth Circuit did not address an Due Process Clause claim, only an Equal Protection Clause claim, its relevance is less. But many federal district courts addressing same-sex marriage also address Equal Protection Clause claims--particularly given the uncertainty about which clause or clauses of the Constitution the Supreme Court relied on in its opinion in Windsor. And it still addresses the government's rational basis arguments, which may be relevant for a Due Process Clause claim.

Or, it might be the case that things have changed significantly in eight years, either due to political factors or due to the Supreme Court's opinions in cases like Windsor. But one would expect that at least some district courts might cite the opinion, then distinguish it by pointing to changed circumstances. (This has been the typical route for courts explaining why the Supreme Court's decision in Baker v. Nelson (1972) is not applicable.)

So, will any federal district court cite Bruning? Any appellate court? Even merely to distinguish it?

Or, perhaps, is the Eighth Circuit case the exact set-up for a circuit split that might force the Supreme Court to address the issue in future litigation, depending on how other appellate courts handle the matter?

Only time will tell.

I admit, perhaps it's a bit deceptive to say that it's "BREAKING" news. But, confession time: was the Eighth Circuit's eight-year-old case law news to you?