AMENDMENT ONE: THE NEBRASKA
EQUAL PROTECTION CLAUSE
JASON W. HAYESt
I.
INTRODUCTION
"No State shall'.., deny to any person within its jurisdiction the
equal protection of the laws."1 This clause, found in the Fourteenth
Amendment of the United States Constitution, grants equal protection of the laws to all citizens of the United States. 2 In 1997, the Nebraska Legislature adopted a state legislative resolution 3 to place
similar equal protection wording into the Nebraska State Constitution
if approved by the voters. 4 In November 1998, the Nebraska voters
t Graduated from the University of Nebraska College of Law in 1998. Admitted
to the Nebraska State Bar Association, September 1998. The author gratefully acknowledges the support from Senator Witek's Legislative Office and her Legislative Aide, Rob
Hotz, in providing legislative material. Additional thanks are given to Professors Richard Duncan and Josephine Potuto at the University of Nebraska College of Law for
providing background on constitutional law issues. A special thanks is given to Professor John Gradwohl at the University of Nebraska College of Law for his guidance and
editorial skills, and my wife, Tanya Boijes-Hayes. The author was the recipient of the
Robert G. Simmons Nebraska Law Practice Writing Competition award given in recognition of this article.
1. U.S. CONST. amend. XIV, § 1. This provision was adopted in 1868, after the
American Civil War, as a means to end unequal treatment of laws against citizens of
the United States within all state boundaries.
2. The definition of"equal protection clause" provides: "This clause requires that
persons under like circumstances be given equal protection in the enjoyment of personal
rights and the prevention and redress of wrongs." BLAcK's LAw DICTIoNARY 537 (6th ed.
1990). The phrase "equal protection of the law" signifies that: "no person or class of
persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in like circumstances in their lives, liberty, property, and in their
pursuit of happiness." Id.
3. LR 20CA, 95th Leg., 1st Sess. (Neb. 1997). Senators Kristensen, Warner,
Withem, and Schimek introduced LR 2OCA, and it provides:
The members of the ninety-fifth legislature of Nebraska, first session, resolve
that:
Section 1. At the general election in November 1998 the following proposed
amendment to the Constitution of Nebraska shall be submitted to the electors
of the State of Nebraska for approval or rejection: To amend Article I, section 3:
1-3 "No person shall be deprived of life, liberty, or property, without due process
of law, nor be denied equal protection of the laws."
Sec. 2. The proposed amendment shall be submitted to the electors in the
manner prescribed by the Constitution of Nebraska, Article XVI, section 1,
with the following ballot language: "A constitutional amendment to provide
that no person shall be denied the equal protection of the laws. For/Against."
Neb. LR 20CA.
4. 1997 NEB. LEGIS. J., 95th Leg., 1st Sess. 2190 (1997). LR 20CA was voted on by
the Nebraska Legislature on May 21, 1997, during the Final Reading, the last vote
CREIGHTON LAW REVIEW
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approved Amendment One, which contained the equal protection
clause provision. 5 Now the question arises: What improvement will be
gained by placing an identical equal protection clause into the Nebraska State Constitution, considering that equal protection of the
laws already applies to all states under the Federal Constitution?
Sponsors of the proposed amendment have conceded that Nebraska citizens are currently protected by the Equal Protection Clause
found in the Fourteenth Amendment. 6 However, the need for this duplicative clause was proclaimed by a Nebraska state senator - in arguing that the state should adopt the Equal Protection Clause into its
own constitution - because Nebraska is a separate sovereign entity
and should follow restrictions placed upon it by its own constitution
rather than that of the federal Constitution. 7 Another state senator
referred to the adoption of the amendment as a "slam dunk," claiming
that such an amendment "shouldn't be controversial."s
What are the ramifications since the Nebraska electorate has
adopted the equal protection clause amendment placed before it by the
Nebraska Legislature? Is it a "slam dunk" with minor reservations, if
any, or will the enactment of the amendment have dramatic consequences on the legal foundational rights of Nebraskans?9
which the Nebraska Unicameral takes before either a bill goes to the Governor to be
signed into law, or in this case, a constitutional amendment goes to the Secretary of
State to be placed on the ballot for a vote by the citizens of Nebraska. On Final Reading, the vote was forty-two for, two opposed and five votes either abstaining or absent
for the vote. Id. The two votes against were cast by Senator Witek and Senator Dierks.
LR 20CA was presented to the Secretary of State of Nebraska on May 21, 1997. Id. at
2207.
5. Amendment One (LR 20CA) was adopted by the voters of Nebraska just prior
to the publication of this article. On November 3, 1998, of the 93% of the votes counted
up to the time of printing, Amendment One passed 331,337 (73%) for its adoption, to
125,023 (27%) against its adoption. See Vote 1998 Unofficial Election Returns by Race
(Nov. 4, 1998) (on file with author).
6. Transcript Prepared by the Clerk of the Legislature, 95th Leg., 1st Sess. 3609
(Apr. 9, 1997) (pertaining to the LR 20CA floor debate).
7. Transcript of the Clerk, supra note 6, at 541-42, 609 (hereinafter Transcript of
the Clerk] (regarding the LR 20CA floor debate comments by Senator Ernie Chambers).
However, this goes against the very foundation of the Supremacy Clause of the Federal
Constitution, and the wording of the Fourteenth Amendment itself places direct restrictions on the actions of states in regard to the equal protection of the laws.
8. Transcript of the Clerk, supra note 6, at 544-45. Comments made during floor
debate by Senator Schimek referring to a phrase coined by Senator Eric Will with regard to the passage of LR 20CA being a "slam dunk;" in other words, a belief that the
amendment would be uncontroversial.
9. Nebraska State Senator Kate Witek of the 31st Legislative District was the
primary opponent of the amendment. In a lengthy floor debate, Senator Witek argued
that adding such a provision to the state constitution would result in mischievous consequences by having the Nebraska State Supreme Court expand the concept of what classifications the Equal Protection Clause would apply to. Transcript of the Clerk, supra
note 6, at 537-39.
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NEBRASKA EQUAL PROTECTION CLAUSE
II. BACKGROUND
A.
PROPOSAL BY THE CONSTITUTIONAL REVISION COMMISSION
The Equal Protection Clause Constitutional Amendment originally was proposed by the Nebraska Constitutional Revision Commission, comprised of twelve members with the task of revising and
10
According to the enupdating the Nebraska State Constitution.
abling statutes, the purpose of the commission was to:
make a complete study of the Constitution of Nebraska to determine what changes, if any, should be made. [Further,] the
commission shall place special emphasis on simplifying and
condensing the constitution for the purpose of giving the Legislature broad powers, rather than numerous individual
amendments." 1
Additional themes were noted in a later report by the commission to
include "[e]xpanding protection for individual citizen constitutional
12
rights.
During the February 16, 1996, hearing of the Constitutional Revision Commission, the equal protection proposal was discussed and
passed with little debate - other than several statements of emphatic
13
The members
support by each of the commission members present.
expressed astonishment that the equal protection clause was not already in the body of the Nebraska Constitution; one member even
stated he "was amazed to discover that it isn't in the Nebraska Constitution. 1 4 This debate included statements of praise for the proposal
10. NEB. REV. STAT. §§ 49-1601 to -1602 (Cum. Supp. app. The enabling statutes
went into effect on September 9, 1995. As noted, the commission was made up of twelve
members; six were named by the Legislature with whom three were sitting Legislators,
three were named by the Governor, and the remaining three were chosen by the Nebraska Supreme Court. The members were as follows: Dick Herman - Chairman, from
Lincoln; Richard Fellman, from Omaha; Dean Hascall, from Bellevue; Senator Douglas
Kristensen, from Minden; Norman Krivosha, from Lincoln (former Chief Justice of the
Nebraska Supreme Court); Peter Longo, from Kearney; Robert Mullin, from Scottsbluff;
Michael Nelson, from Omaha; W. Don Nelson, from Lincoln; James C. Stecker, from
Columbus; Senator Jerome Warner, from Waverly (now deceased); and Speaker of the
Legislature Ron Withem, from Papillion. There was some controversy regarding the
appointment of these twelve individuals, because they were all white men. A proposal
was introduced in the Legislature to expand the membership but that proposal never
reached floor debate in the 1996 Session. See Report of the Nebraska Constitutional
Revision Commission, 95th Leg., 1st Sess. (June 6, 1997).
11. NEB. REV. STAT. § 49-1602 (Cum. Supp. app.
12. Report of the Nebraska Constitutional Revision Commission, 95th Leg., 1st
Sess. 4 (June 6, 1997).
13. Transcript of the Constitutional Revision Commission, 95th Leg., 1st Sess. 3438 (Feb. 16, 1996) [hereinafter Transcript of Revision Comm'n]. The proposal passed
with all eight members present at the meeting voting for the equal protection clause
insertion.
14. Transcript of Revision Comm'n, supra note 13, at 36 (comment by commission
member Dick Fellman).
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by all eight members present at the hearing, but overall there was a
lack of critical analysis and reflection with regard to the legal consequences of the proposal when applied to the laws of Nebraska.1 5
The debate included a minor discussion regarding the future effects of the amendment on the financing of education within the
state. 16 One member pointed out that "when the argument is made
that children are entitled to an education and when it was pointed out
that there is a tremendous difference in the amount of expenditure per
pupil from district to district in this state, I think a clever lawyer
could say that that raises an equal protection question."1 7 Additionally, another member believed that the proposal "could create
problems for [Nebraska's] school financing because I'm not sure
[school financing] is equal among all the people and maybe it should
be addressed."1 8 Thus, there was an apparent awareness by the commission members - based on these limited statements - that the
result of placing an equal protection clause within the Nebraska Constitution could have a possible impact on the school financing structure within the state.
B.
ADOPTION OF
LR 20CA BY THE NEBRASKA LEGISLATURE
In order for the Constitutional Revision Commission's proposal to
be placed on the ballot, Nebraska law requires that the proposal first
be passed by the Nebraska Legislature, or be placed on the ballot
through a citizen initiative process. 19 The proposal was introduced on
the floor of the Nebraska Legislature on January 9, 1997, as Legisla15. Id. at 34-38.
16. Id. at 36-38. Senator Warner, now deceased, also raised the issue - in addition to school financing - as to the recognition of a corporation as an individual under
the equal protection clause with regard to equality of taxation between corporations and
individuals within the state. Senator Warner was unsure as to whether such application would apply.
17. Transcript of Revision Comm'n, supra note 13, at 36 (comment by commission
member Dick Fellman).
18. Id.
19. NEB. CONST. art. XVI, § 1. If the proposal is passed with a three-fifths majority
of the members elected to the legislature, then such proposed amendment will be submitted to the voters in ballot format. Id. Proper notice is required with printing of the
proposed amendment in the newspapers of each county across the state. Id. The
amendment, once adopted by the state legislature, is then placed on either a general or
primary ballot. Id. For the placement on a ballot during a special election, a four-fifths
majority vote of the legislature is required. Id. The voters also have a process by which
constitutional amendments can be placed on the general ballot through an initiative
process. NEB. CONST. art. III, §§ 2, 4. This process requires a petition be signed by at
least 10% of the registered voters. Such petition must be distributed to include at least
5% of the registered voters of each of two-fifths of the counties of the state.
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NEBRASKA EQUAL PROTECTION CLAUSE
tive Resolution 20CA ("LR 20CA"). 20 The bill's primary sponsor, Senator Douglas A. Kristensen, proclaimed that the need for the equal
protection clause in the state constitution was "a matter of fairness." 2 1
Senator Kristensen noted that the Nebraska Supreme Court had already interpreted a clause in the Nebraska Constitution as providing
for equal protection of the laws, but that the provision was enmeshed
in "archaic language" and needed to be clearly stated. 22 Other proponents of LR 20CA commented as to the need to provide a symbolic
20. 1997 NEB. LEGIS. J. at 138. Constitutional Amendment proposals are introduced as legislative resolutions. The "CA" after the designation denotes that it is a
constitutional amendment. Resolutions -are numbered in the order in which they are
first read in the legislative chamber.
21. Transcript Prepared by the Clerk of the Legislature, 95th Leg., 1st Sess. 532
(Jan. 30, 1997) [hereinafter Transcript of the the Clerk II].
22. Transcript of the Clerk II, supra note 21, at 533-34. Senator Kristensen was
referring to article III, section 18 of the Nebraska Constitution. Speaker Kristensen
was correct, because the Nebraska Supreme Court had interpreted article III, section 18
as providing equal protection of the laws to citizens of Nebraska. See Haman v. Marsh,
237 Neb. 699, 467 N.W.2d 836 (1991) (holding unconstitutional a law affecting a closed
class as constituting special legislation); Distinctive Printing & Packaging Co. v. Cox,
232 Neb. 846, 443 N.W.2d 566 (1989) (stating that article III, section 18 of the state
constitution prohibited the Nebraska legislature from enacting laws that waste special
or exclusive privileges where a general law can be applicable).
Article III, section 18 of the Nebraska Constitution provides:
The Legislature shall not pass local or special laws in any of the following
cases, that is to say: For granting divorces. Changing the names of persons or
places. Laying out, opening altering and working roads or highways. Vacating
roads, Town plats, streets, alleys, and public grounds. Locating or changing
County seats. Regulating County and Township offices. Regulating the practice
of Courts of Justice. Regulating the jurisdiction and duties of Justices of the
Peace, Police Magistrates and Constables. Providing for changes of venue in
civil and criminal cases. Incorporating Cities, Towns and Villages, or changing
or amending the charter of any Town, City, or Village. Providing for the election of Officers in Townships, incorporated Towns or Cities. Summoning or empanelling Grand or Petit Juries. Providing for the bonding of cities, towns,
precincts, school districts or other municipalities. Providing for the management of Public Schools. The opening and conducting of any election, or
designating the place of voting. The sale or mortgage of real estate belonging to
minors, or others under disability. The protection of game or fish. Chartering or
licensing ferries, or toll bridges, remitting fines, penalties or forfeitures, creating, increasing and decreasing fees, percentage or allowances of public officers,
during the term for which said officers are elected or appointed. Changing the
law of descent. Granting to any corporation, association, or individual, the
right to lay down railroad tracks, or amending existing charters for such purpose. Granting to any corporation, association, or individual any special or exclusive privileges, immunity, or franchise'. whatever; Provided, that
notwithstanding any other provisions of this Constitution, the Legislature
shall have authority to separately define and classify loans and installment
sales, to establish maximum rates within classifications of loans or installment
sales which it establishes, and to regulate with respect thereto. In all other
cases where a general law can be -made applicable, no special law shall be
enacted.
NEB. CONST. art. III, § 18.
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reference that the State of Nebraska supported the concept of Equal
23
Protection of the Laws.
In contrast to the proponents' arguments of symbolically adopting
the resolution, Senator Kate Witek, of Omaha, led the debate against
the adoption of LR 20CA. 24 The argument that Witek advocated consisted of two prongs. The first argument stressed that by adding an
explicit equal protection clause to the state constitution, Nebraskans
would merely be obtaining rights that they already possessed under
the Fourteenth Amendment. 25 The second argument cautioned that
having such a clause in the state constitution would enable the Nebraska Supreme Court to define equal protection of the law according
to its own interpretation rather than the one proscribed by the United
States Supreme Court. 26 Senator Witek commented, "at worst state
court judges will assume that it must have been intended to go beyond
the federal provisions, [and] that's more likely to be mischievous than
helpful."2 7 The opponents warned that adding an explicit equal protection clause to the Nebraska Constitution would allow for the expansion of equal protection to other areas of the law not already provided
for by the United States Constitution. 28 Not heeding the concerns of
the opponents, LR 20CA was adopted by the Nebraska Legislature
and subsequently placed on the ballot for voter approval. 2 9
23. Transcript of the Clerk II, supra note 21. Some state senators were worried
about what the national media would think if Nebraska rejected the adoption of the
equal protection clause for its own state constitution. Id. at 553, 559-60.
24. Transcript of the Clerk II, supra note 21, at 537-39, 548-49, 556-58, 562-64,
3609-16.
25. Id. at 537.
26. Id. at 538.
27. Id.
28. Id. at 548-49. Senator Witek argued that such expansion would reach into the
areas of same-sex marriages and equality based financing of school systems. The senator made references to the school-financing debate that occurred in Nebraska during the
1996 election year. In that debate there was an initiative to place a quality of education
requirement into the Nebraska State Constitution. Senator Witek referred to the issue
as having potentially similar result in requiring the shifting of property tax revenue
from wealthy school districts to those districts at an inherent disadvantage.
29. 1997 NEB. LEGIS. J. at 440. Four votes are required in the Nebraska Legislature before a bill or resolution may advance. The first vote is to advance the item out of
committee. Regarding LR 20CA, the bill came before the Committee on the Judiciary.
In that committee the resolution advanced on a vote of 7-0-1, with one senator absent
for the vote. The second vote is taken to advance the item from General File to Select
File in the Nebraska Unicameral. On the General File vote, LR 20CA advanced on a
vote of 37-1-11. 1997 NEB. LEGIS. J. at 482. The third vote was taken during Select File
to advance the measure to Final Reading, which won approval to advance but was not a
recorded vote. Id. at 1437. On Final Reading the resolution passed 42-2-5. See supra
note 4 and accompanying text.
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III.
NEBRASKA EQUAL PROTECTION CLAUSE
ANALYSIS
Are the opponents of the proposed equal protection clause justified in believing that Amendment One's equal protection language will
lead to changes in Nebraska law? Or are the proponents correct in
stating that Nebraskans need increased equal protection not already
provided for by the Federal Constitution? To analyze these competing
arguments, I will focus on the impact and ramifications in various
states that have adopted equal protection clauses into their state constitutions. This focus is required given the tens of thousands of cases
that have reviewed the equal protection clause and the levels of scrutiny that courts use to validate governmental actions. 30 The cases reviewed here are the ones granting equal protection rights surpassing
the Federal Constitution that entail interpretations by state supreme
courts of their own state equal protection clauses. However, instances
where state supreme courts used opinions or theories already established by the United States Supreme Court will not be analyzed because they do not adequately answer the general question of what
voters in Nebraska can expect as a result of such an expansion on the
rights found in a state equal protection clause.
A.
ADEQUATE AND INDEPENDENT STATE GROUNDS CONSIDERATION
States are free to afford their citizens greater equal protection of
the law under their own state constitutions than is granted by the
Federal Constitution. In Michigan v. Long,3 1 the United States
Supreme Court held that where a judgment of a state court rests upon
two grounds, one which is federal and another which is nonfederal in
character, the Supreme Court's jurisdiction fails if the nonfederal
ground is independent of the federal ground and adequate to support a
judgment. 32 However, where the judgment of a state court rests upon
two grounds, and the nonfederal ground is so interwoven with the federal ground as to not be of an independent matter, or is not of a sufficient breadth to sustain a judgment without any decision of the other,
the Supreme Court has jurisdiction. 3 3 Thus, if a state supreme court
rests a judgment on a provision found within its state constitution,
and that judgment is adequate and independent to support the judgment of the state supreme court, then the United States Supreme
30. A search resulted in at least 77,150 cases that employed the equal protection
language within its text, based upon a general Westlaw query of "Equal Protection" in
the ALLCASES database, which includes all state and federal cases after 1944.
31. 463 U.S. 1032 (1983).
32. Michigan v. Long, 463 U.S. 1032, 1032-33 (1983).
33. See Murdock v. Memphis, 87 U.S. 590, 636 (1875) (describing the basic principle that state court decisions on issues solely concerning state law cannot be reviewed
by the United States Supreme Court).
618
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Court does not have jurisdiction to overturn the state court's decision.
This result arises from the principle that state supreme courts are the
34
final expositors of the meaning of state law.
According to the Adequate and Independent State Grounds doctrine, if a state then chooses to provide a greater degree of due process
protection under its own constitution, the United States Supreme
Court will not reverse the ruling of the state supreme court (unless
the state proceeding deals with certain sentencing issues).3 5 However, if a state supreme court affords protection beneath the level
found in the Federal Constitution, then such a ruling would be unconstitutional, because the Federal Constitution would require a greater
threshold of protection.
B.
THE EQUAL PROTECTION CLAUSE IN STATE CONSTITUTIONS
The clauses granting Equal Protection of the Law in various state
constitutions come in many different forms. A total of forty-five states
have either an Equal Protection Clause similar to the Fourteenth
Amendment, or a clause which the state's supreme court has interpreted to provide equal protection of the law. 36 In studying the effects
34. See Judiciary Act of 1789 (Rules of Decision Act), 1 Stat. 73 (codified as
amended at 28 U.S.C. § 1652 (1994) (establishing the jurisdiction of the United States
Supreme Court under the conditions provided for in article III, section 2 of the United
States Constitution).
35. See State v. Le Grand, 249 Neb. 1, 541 N.W.2d 380, 385-86 (1995) (holding that
the Nebraska Supreme Court recognizes the Independent and Adequate State Grounds
Doctrine).
36. Forty-five states constitutions contain clauses from which equal protection of
the law protrudes: ALASKA CONST. art. I, § 1 (see Leege v. Martin, 379 P.2d 447, 451
(Alaska 1963)); CAL. CONST. art. I, § 7(a) (see San Bernadino County v. Way, 117 P.2d
354 (Cal. 1941)); GA. CONST. art. I, § 2 (see Georgia R.R & Banking Co. v. Wright, 54
S.E. 52 (Georgia 1906)); ILL. CONST. art. I, § 2 (see People v. Nicholson, 82 N.E.2d 656
(Ill. 1948); ME. CONST. art. I, § 6-A (see Lambert v. Wentworth, 423 A.2d 527 (Me.
1980)); Mo. CONST. art. I, § 2 (see State v. Stokely, 842 S.W.2d 77 (Mo. 1992)); S.C.
CONST. art. I, § 3 (see Harrison v. Caudle, 139 S.E. 842 (S.C. 1927)); UTAH CONST. art. I,
§ 2 (see Purdie v. University of Utah, 584 P.2d 831 (Utah 1978)); ALA. CONST. art. I, § 1
(see Dillon v. Hamilton, 160 So. 708 (Ala. 1935)); N.H. CONST. pt. 1, art. 1 (see State v.
Amyot, 407 A.2d 812 (N.H. 1979)); N.J. CONST. art. I, § 1 (see Washington Nat'l Ins. Co.
v. Board of Review of N.J. Unemployment Compensation Comm'n, 64 A.2d 443, 445
(N.J. 1949)); OKLA. CONST. art. II, § 2 (see Wilson v. Foster, 595 P.2d 1329, 1332-33
(Okla. 1979)); PA. CONST. art. I, § 1 (see Dansby v. Thomas Jefferson Univ. Hosp., 623
A.2d 816, 820 (Pa. 1993)); TEX. CONST. art. 1, § 3 (see Burroughs v. Lyles, 181 S.W.2d
570, 574 (Tex. 1944)); VT. CONST. ch. 1, art.,9 (see Clark v. City of Burlington, 143 A.
677, 685-86 (Vt. 1928)); Wis. CONST. art. I, § 1 (see Kallas Millwork Corp. v. Square D
Co., 225 N.W.2d 454, 458 (Wis. 1975)); ARK.. CONST. art. 2, § 3 (see Poe v. State, 470
S.W.2d 818, 819-20 (Ark. 1971)); CONN. CONST. art. 1, § 20 (see Brunswick Corp. v. Liquor Control Comm'n, 440 A.2d 792 (Conn. 1981)); FLA. CONST. art. I, § 2 (see Caldwell
v. Mann, 26 So. 2d 788 (Fla. 1946)); HAw. CONST. art. I, § 5 (see Baehr v. Lewin, 852
P.2d 44 (Haw. 1993)); LA. CONST. art. I, § 3 (see Whitnell v. Silverman, 686 So. 2d 23
(La. 1996)); MAss. CONST. pt. 1, art. 1 (see Murphy v. Commissioner of the Dep't of Indus. Accidents, 612 N.E.2d 1149, 1154 (Mass. 1993)); MICH. CONST. art. I, § 2 (see Fox v.
1998]
NEBRASKA EQUAL PROTECTION CLAUSE
of equal protection clauses in different states, it is necessary to differentiate between the categories into which the various clauses can be
organized. This is an important step, because a state may have a
clause which provides for equal protection, but may also have additional language in the clause itself that would grant the interpreting
court justification for expanding the scope outside of the protections
previously interpreted under the Fourteenth Amendment. The importance of analyzing the additional wording in each clause is that the
wording may provide the grounds for a state supreme court to go beyond the protections granted in the Fourteenth Amendment by the
United States Supreme Court, whereas a similar result may not occur
in the application of Nebraska's Amendment One due to its distinct
37
wording.
1.
Basic Components
The primary component of the equal protection clause is the language that establishes the right to have laws that apply equally to
those similarly situated. This can be recognized as "the equality language." 38 Using the Fourteenth Amendment to demonstrate, such
Michigan Employment Sec. Comm'n, 153 N.W.2d 644 (Mich. 1967)); MONT. CONST. art.
II, § 4 (see Godfrey v. State, 631 P.2d 1265 (Mont. 1981)); N.M. CONST. art. II, § 18 (see
Board of Trustees of Las Vegas v. Montano, 481 P.2d 702 (N.M. 1971)); N.Y. CONST. art.
I, § 11 (see Medical Bus. Associates, Inc. v. Steiner, 183 A.2d 86 (N.Y. 1992)); N.C..
CONST. art. I, § 19 (see S.S. Kresge Co. v. Davis, 178 S.E.2d 382 (N.C. 1971)); R.I. CONST.
art. I, § 2 (see City of Warwick v. Almac's, Inc., 442 A.2d 1265 (R.I. 1982)); Wyo. CONST.
art. I, § 3 (see Johnson v. State, 838 P.2d 158 (Wyo. 1992)); ARiz. CONsT. art. 2, § 13 (see
Valley Nat'l Bank of Phoenix v. Glover, 159 P.2d 292, 299 (Ariz. 1945)); IDAHO CONST.
art. I, § 2 (see Fisher v. Masters, 83 P.2d 212 (Idaho 1938)); IND. CONST. art. I, § 23 (see
Fountain Park Co. v. Hensler, 155 N.E. 465, 467 (Ind. 1927)); IOWA CONST. art. 1, § 6
(see Beeler v. Van Cannon, 376 N.W.2d 628 (Iowa 1985)); KAN. BILL OF RIGHTS § 2 (see
Harris v. Shanahan, 390 P.2d 772, 776 (Kan. 1964)); MINN. CONST. art. 1, § 2 (see
Thomas Oil, Inc. v. Onsgaard, 215 N.W.2d 793, 796 (Minn. 1974)); N.D. CONST. art. I,
§ 21 (see Hamich, Inc. v. State ex rel. Clayburgh, 564 N.W.2d 640, 647-48 (N.D. 1997));
OHIO CONST.art. I, § 2 (see State ex rel. Bateman v. Bode, 45 N.E. 195 (Ohio 1896)); OR.
CONST. art. I, § 20 (see Plummer v. Donald M. Drake Co., 320 P.2d 245, 248 (Or. 1958));
S.D. CONST. art. 6, § 18 (see Standard Oil Co. v. Jones, 205 N.W. 72 (S.D. 1925)); TENN.
CONST. art. XI, § 8 (see Tennessee Small Sch. Sys. v.McWherter, 851 S.W.2d 139, 152
(Tenn. 1993)); WASH. CONST. art. I, § 12 (see DeFunis v. Odegaard, 507 P.2d 1169, 118485 (Wash. 1973)); NEB. CONST. art. III, § 18 (see Haman v. Marsh, 467 N.W.2d 836, 846
(Neb. 1991)); Ky. CONST. § 59 (see Tabler v. Wallace, .704 S.W.2d 179, 183 (Ky. 1985));
CoLo. CONST. art. II, § 25 (see Colorado Auto & Truck Wreckers Ass'n v. Department of
Revenue, 618 P.2d 646, 655 n.7 (Colo. 1980)); W. VA. CONST. art. 3, § 10 (see Thorne v.
Roush, 261 S.E.2d 72, 74 (W. Va. 1979)).
37. However, under the Adequate and Independent State Grounds Doctrine, state
courts are still able to expand their interpretations of the state constitutional clause
even where such language is verbatim to the language found in the Fourteenth
Amendment.
38. To differentiate and describe the categories of state equal protection clauses
more precisely, I will refer to them as: (1) "the equality language;" (2) "the accountable
party language;" and (3) "specified rights language." This terminology, to the best of the
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[Vol. 32
language is clearly apparent in the following phrase when stating
"nor deny ... the equal protection of the law."'39 This language gives
the interpreting court the grounds to establish that equal protection of
the law can be found within the clause. Without such a component in
the equal protection clause, the clause itself would lack the essential
element necessary for establishing equal application of the law.
The next component consists of language that indicates to which
group the equality language applies. This can be called "the accountable party language." 40 In other words, the accountable party is the
group that must answer when equal protection scrutiny is applied by
the courts to the group's actions. In the case of the Fourteenth
Amendment, such language is denoted in the phrase, "nor shall any
state."4 1 Such language indicates to which entity, person or group
these actions are scrutinized by the courts under the equal protection
clause. In some instances, states have included corporations and
firms under this accountable party language. 4 2 In the case of the
Fourteenth Amendment, actions taken by the states are scrutinized in
the courts to determine whether a governmental classification violates
the equal protection clause. 43 The significance of placing an equal
protection clause in a state constitution is that it may be written to
affect actions of private individuals, whereas the Fourteenth Amendment in the Federal Constitution affects only the actions of federal,
state and local governments.
The final component of the equal protection clause is the language, which can be referred to as the "specified rights language."4 4
This language consists of explicitly stated rights that the equal protection clause is meant to protect with regard to classifications of individuals. For instance, if sex is included as a fundamental right in a
state's equal protection clause, then a state court could interpret such
language as requiring the designation of sex as a suspect class,
thereby granting the application of strict or intermediate scrutiny
author's knowledge, has not been used in any other manuscript to describe the component parts of the state equal protection clauses and consists of original terms.
39. U.S. CONST. amend. XIV, § 1.
40. See supra note 38 and accompanying text.
41. See supra notes 1, 38 and accompanying text.
42. MONT. CONST. art. II, § 4. Montana's Constitution provides: "The dignity of the
human being is inviolable. No person shall be denied the equal protection of the laws.
Neither the state nor any person, firm, corporation, or institution shall discriminate
against any person in the exercise of his civil or political rights on account of race, color,
sex, culture, social origin or condition, or political or religious ideas." Id.
43. See Kathryn A. McAluney, Equal Protection,27 RUTGERS L.J. 1074 (1996) (listing cases deciding equal protection issues in the civil and criminal arena).
44. See supra note 38 and accompanying text.
1998]
NEBRASKA EQUAL PROTECTION CLAUSE
621
when given the court's review of the accountable group. 4 5 By assigning an enhanced level of scrutiny, a government trying to uphold
its action under the equal protection clause would be required to establish that the action was necessary to achieve a compelling government interest. Without such enhancement, the government would
only be required to show that its action rationally relates to a legitimate government interest. In the Fourteenth Amendment, such language is absent; the development of suspect criteria and fundamental
rights is reserved for the United States Supreme Court to pronounce.
A number of states have placed specified rights terminology into their
constitutions as a means of limiting the scope of the clause or, in the
alternative, to provide for a classification that the courts would not
46
have otherwise provided.
2.
Categorization
With the component parts defined, state equal protection clauses
can next be categorized into six different groups based upon similarities of their component parts. The first group consists of state constitutional clauses that explicitly provide for equal protection of the law
without defining suspect classifications, which is comparable to the
language found in the Fourteenth Amendment; eight states have such
clauses. 4 7 The clauses have similar component parts as found in the
Fourteenth Amendment, including the "equality" language out of
which the protection arises. 48 Just like the Fourteenth Amendment,
these clauses also lack the specified rights language, leaving such in45. See Baehr v. Lewin, 852 P.2d 44 (Haw. 1993) (holding that by its plain language the Hawaii Constitution Equal Protection Clause prohibits state-sanctioned discrimination against any person in exercise of his or her civil rights on the basis of sex).
46. See infra note 53 (listing states with such specified rights).
47. Eight states have explicit equal protection clauses that exclude suspect classifications within the language of the clause, similar in format to the Fourteenth Amendment: ALAsKA CONST. art. I, § 1 (see Leege v. Martin, 379 P.2d 447, 451 (Alaska 1963));
CAL. CONST. art I, § 7(a) (see San Bernadino County v. Way, 117 P.2d 354 (Cal. 1941));
GA. CONST. art. I, § 2 (see Georgia R.R & Banking Co. v. Wright, 54 S.E. 52 (Ga. 1906));
ILL. CONST. art. I, § 2 (see People v. Nicholson, 82 N.E.2d 656 (Ill. 1948)); ME. CONST.
art. I, § 6-A (see Lambert v. Wentworth, 423 A.2d 527 (Me. 1980)); Mo. CONST. art. I, § 2
(see State v. Stokely, 842 S.W.2d 77 (Mo. 1992)); S.C. CONST. art. I, § 3 (see Harrison v.
Caudle, 139 S.E. 842 (S.C. 1927)); UTAH CONST. art. I, § 2 (see Purdie v. University of
Utah, 584 P.2d 831 (Utah 1978)). Utah's clause is somewhat different from the others
in stating that all political power is inherent in the people; and all free governments are
founded on their authority for their equal protection and benefit. UTAH CONST. art I,
§ 2. Amendment One will be included in this group when it becomes operative.
48. For instance, Illinois' Constitution states: "No person shall be deprived of life,
liberty or property without due process of law nor be denied the equal protection of the
laws." ILL. CONST. art. I, § 2. The equal protection language is clear and explicitly
stated but does not define the suspect classifications such as race or sex. The scope of
the equal protection is left to the interpretation of the court.
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terpretation to the courts. Amendment One, Nebraska's amended
equal protection clause, falls within this category. 4 9
In the second group, the constitutional clauses provide for inalienable rights to be held by citizens of their state, out of which equal protection of the law is interpreted to emanate; eight states have such
language in their state constitutions. 50 These clauses provide for
equal protection of the law in that the citizens of the state are said to
have inalienable rights and it is presumed that these rights are
shared equally. 5 1 Certain "specified rights" are listed, but they are
only mentioned with regard to inalienable rights, or such basic rights
as life, liberty and the pursuit of happiness, and do not define the sus52
pect classifications.
A third group is comprised of clauses that contain explicit equal
protection provisions, but unlike the first category, this group defines
the suspect classifications under their included specified rights language; thirteen states have this type of clause contained in their state
constitutions. 5 3 Such language is similar to the Fourteenth Amend49. See supra note 3 and accompanying text.
50. Eight states have equal protection clauses that arise out of language expressly
providing for inalienable rights: ALA. CONST. art. I, § 1 (see Dillon v. Hamilton, 160 So.
708 (Ala. 1935)); N.H. CONST. pt. 1, art. 1 (see State v. Amyot, 407 A.2d 812 (N.H. 1979));
N.J. CONST. art. I, § 1 (see Washington Nat'l Ins. Co. v. Board of Review of N.J. Unemployment Compensation Comm'n, 64 A.2d 443, 445 (N.J. 1949)); OKLA. CONST. art. II,
§ 2 (see Wilson v. Foster, 595 P.2d 1329, 1332-33 (Okla. 1979)); PA. CONST. art. I, § 1 (see
Dansby v. Thomas Jefferson Univ. Hosp., 623 A.2d 816, 820 (Pa. 1993)); TEX. CONST.
art. 1, § 3 (see Burroughs v. Lyles, 181 S.W.2d 570, 574 (Tex. 1944)); VT. CONST. ch. I,
art. 9 (see Clark v. City of Burlington, 143 A. 677, 685-86 (Vt. 1928)); Wis. CONST.art. I,
§ 1 (see Kallas Millwork Corp. v. Square D Co., 225 N.W.2d 454, 458 (Wis. 1975)). In
this category, equal protection is not explicitly stated in the clause, nor are suspect classifications included in the text of the clause.
51. For example, Alabama's Constitution sets forth "[t]hat all men are equally free
and independent; that they are endowed by their Creator with certain inalienable
rights; that among these are life, liberty and the pursuit of happiness." ALA. CONST. art.
I, § 1. The clause includes the inalienable rights of life, liberty and the pursuit of happiness shared by its citizens, from which the courts have read equal protection of the law.
See Dillon v. Hamilton, 160 So. 708 (Ala. 1935).
52. The clause of the Texas Constitution varies from the group listed in footnote
50. The Texas clause states: "All free men, when they form a social compact, have equal
rights. . . ." TEX. CONST. art. 1, § 2. It is from these rights equally shared that equal
protection of the law arises. See Burroughs, 181 S.W.2d 570 at 574.
53. Thirteen states have equal protection clauses that expressly define suspect and
protected classifications: ARK. CONST. art. 2, § 3 (see Poe v. State, 470 S.W.2d 818, 81920 (Ark. 1971)); CONN. CONST. art. 1, § 20 (see Brunswick Corp. v. Liquor Control
Comm'n, 440 A.2d 792 (Conn. 1981)); FLA. CONST. art. I, § 2 (see Caldwell v. Mann, 26
So. 2d 788 (Fla. 1946)); HAw. CONST. art. I, § 5 (see Baehr v. Lewin, 852 P.2d 44 (Haw.
1993)); LA. CONST.art. I, § 3 (see Whitnell v. Silverman, 686 So. 2d 23 (La. 1996)); MAss.
CONST. pt. 1, art. 1 (see Murphy v. Commissioner of the Dep't of Indus. Accidents, 612
N.E.2d 1149, 1154 (Mass. 1993)); MICH. CONST. art. I, § 2 (see Fox v. Michigan Employment Sec. Comm'n, 153 N.W.2d 644 (Mich. 1967)); MONT.CONST. art. II, § 4 (see Godfrey
v. State, 631 P.2d 1265 (Mont. 1981)); N.M. CONST. art. II, § 18 (see Board of Trustees of
Las Vegas v. Montano, 481 P.2d 702 (N.M. 1971)); N.Y. CONST. art. I, § 11 (see Medical
1998]
NEBRASKA EQUAL PROTECTION CLAUSE
623
ment, but in this group definite specified rights are listed with regard
to the classifications under which courts apply a heightened scrutiny.54 These specified rights are contained in the actual text of each
clause and cover a wide range of rights, including (in some cases) race,
color, sex (gender), culture, creed (social origin), political and religious
ideas, and physical handicap. 55 Under this category, the specified
rights language clearly denotes the classifications included within the
scope of each clause.
Another group consists of state constitutional clauses deriving
equal protection from language requiring that no "privileges or immunities" be granted unless they belong equally to all citizens; twelve
states have this "privilege and immunities" language contained in
their constitutions. 5 6 By including the "privileges and immunities"
language, courts are left to determine the appropriate circumstances
under which classifications will arise due to the fact that this category
does not include specified rights language. 5 7 Another important charBus. Associates, Inc. v. Steiner, 183 A.D.2d 86 (N.Y. 1992)); N.C. CONST. art. I, § 19 (see
S.S. Kresge Co. v. Davis, 178 S.E.2d 382 (N.C. 1971)); R.I. CONST. art. I, § 2 (see City of
Warwick v. Almac's, Inc., 442 A.2d 1265 (R.I. 1982)); Wyo. CONST. art. I, § 3 (see John-
son v. State, 838 P.2d 158 (Wyo. 1992)). Note that in a different section of its constitution, Illinois has equal protection of the laws for discrimination on the basis of sex. ILL.
CONST. art. I, § 18. Washington has a similar clause in its state constitution. WASH.
CONST. art. 31, § 1. Given these two examples, other specified rights may also be found
in other clauses contained within state constitutions - particularly as a result of
clauses enacted during the gender equal rights movement of the 1970's.
54. The constitution of Massachusetts provides: "Equality under the law shall not
be denied or abridged because of sex, race, color, creed or national origin." MASS. CONST.
pt. 1, art. 1. Equal protection of the law is explicitly stated with the classifications of
sex, race, color, creed or national origin that defines the scope of suspect classifications
included under this clause. See Murphy, 612 N.E.2d at 1154.
55. See supra note 53 and accompanying text.
56. Twelve states have equal protection clauses that arise out of a privilege and
immunities clause: ARiz. CONST. art. 2, § 13 (see Valley Nat'l Bank of Phoenix v. Glover,
159 P.2d 292, 299 (Ariz. 1945)); IDAHO CONST. art. I, § 2 (see Fisher v. Masters, 83 P.2d
212 (Idaho 1938)); IND. CONST. art. I, § 23 (see Fountain Park Co. v. Hensler, 155 N.E.
465, 467 (Ind. 1927)); IOWA CONST. art. 1, § 6 (see Beeler v. Van Cannon, 376 N.W.2d 628
(Iowa 1985)); KAN. BILL OF RIGHTS § 2 (see Harris v. Shanahan, 390 P.2d 772, 776 (Kan.
1964)); MINN. CONST. art. 1, § 2 (see Thomas Oil, Inc. v. Onsgaard, 215 N.W.2d 793, 796
(Minn. 1974)); N.D. CONST. art. I, § 21 (see Hamich, Inc. v. State ex rel. Clayburgh, 564
N.W.2d 640, 647-48 (N.D. 1997)); OHIO CONST. art. I, § 2 (see State ex rel. Bateman v.
Bode, 45 N.E. 195 (Ohio 1896)); OR. CONST. art. I, § 20 (see Plummer v. Donald M. Drake
Co., 320 P.2d 245, 248 (Or. 1958)); S.D. CONST. art. 6, § 18 (see Standard Oil Co. v.
Jones, 205 N.W. 72 (S.D. 1925)); TENN. CONST. art. XI, § 8 (see Tennessee Small Sch.
Sys. v. McWherter, 851 S.W.2d 139, 152 (Tenn. 1993)); WASH. CONST. art. I, § 12 (see
DeFunis v. Odegaard, 507 P.2d 1169, 1184-85 (Wash. 1973)). Article 1, section 1 of the
Minnesota Constitution provides a variant in this category by stating that "[n]o member
of this state shall be disfranchised or deprived of any of the rights or privileges secured
to any citizen thereof. .. ." MINN. CONST. art. 1, § 2.
57. Oregon's Constitution states: "No law shall be passed granting to any citizen or
class of citizens privileges, or immunities, which, upon the same terms, shall not equally
belong to all citizens." OR. CONST. art. I, § 20. Equal protection is implicit, in that by
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acteristic is that clauses in this group expressly state the parties to
which equal protection of the laws may be extended. For instance, the
language may include limits or grants from being enacted unequally
to a private citizen, class of citizens, or corporations (other than
municipals). 58 By having such parties listed in the text of the clause,
this group expands the scope to which equal protection of the laws
59
may be granted.
The fifth category is comprised of clauses requiring that no special
legislation will be proposed or adopted by the state's legislature. Only
two states have such provisions in their state's constitutions under
which equal protection has been applied. Nebraska - up until the
adoption of Amendment One - was included in this category.6 0 Such
language generally states that the legislature shall not pass local or
special acts concerning particular matters.6 1 Equal protection is
the clause restricting the ability of the state government to grant special privileges and
immunities to citizens, it creates an inverse result because all laws must apply equally.
It is out of this inverse result that equal protection of the law protrudes from the clause.
See Plummer, 320 P.2d at 248.
58. Arizona has a good example of this included in its Constitution: "No law shall
be enacted granting to any citizen, class of citizens, or corporation other than municipal,
privileges or immunities which, upon the same terms, shall not equally belong to all
citizens or corporations." ARIz. CONST. art. 2, § 13. The language is included to provide
that such a clause restricts actions of the state that concern citizens and corporations.
In Arizona, given this language, the state is prevented from granting special privileges
and immunities to corporations, and thereby, such corporations are required to be
treated equally. It is from this result that equal protection of the law protrudes because
this clause impacts the parties included directly. See Valley Nat'l Bank, 159 P.2d at
299.
59. Valley Nat'l Bank, 159 P.2d at 299. The expansion of the scope of the clause to
extend to parties other than just the citizens of the state occurs by the inclusion of the
additional parties. Although other clauses may implicitly provide for this expansion,
this group of clauses does so expressly in its language.
60. Two states have equal protection clauses emanating from sections that prohibit
special legislation: NEB. CONST. art. III, § 18 (see Haman v. Marsh, 467 N.W.2d 836, 846
(Neb. 1991)); Ky. CONST. § 59 (see Tabler v. Wallace, 704 S.W.2d 179, 183 (Ky. 1985)).
The courts in Haman v. Marsh, 467 N.W.2d 836, 846 (Neb. 1991), and Printing& Packaging Co. v. Cox, 443 N.W.2d 566 (Neb. 1989), have interpreted article III, section 18 of
the Nebraska Constitution to provide for equal protection of the laws in Nebraska. Note
that Kentucky also has a provision stating that all men are equal. Ky. CONST. § 59. In
Commonwealth v. Wasson, 842 S.W.2d 487 (Ky. 1993), this clause was used, in part, by
the Kentucky Supreme Court to say that an equal protection of the laws existed. Perhaps given such application by the Kentucky Court, Nebraska could be the only state to
find equal protection of the laws solely within its special legislation statute.
61. The Nebraska Constitution, prior to enactment of Amendment One (LR 20CA),
provided in article III, section 18:
The Legislature shall not pass local or special laws in any of the following
cases, that is to say: For granting divorces. Changing the names of persons or
places. Laying out, opening altering and working roads or highways. Vacating
roads, Town plats, streets, alleys, and public grounds. Locating or changing
County seats. Regulating County and Township offices. Regulating the practice of Courts of Justice. Regulating the jurisdiction and duties of Justices of
the Peace, Police Magistrates and Constables. Providing for changes of venue
1998]
NEBRASKA EQUAL PROTECTION CLAUSE
625
found due to the reasoning that by passing special legislation for one
entity or class, the legislature creates an unequal application of the
law that restricts additional classifications or groups from also obtaining special consideration. 62 Such equality language is not specifically present and is left for interpretation by the courts, which was
one of the reasons proponents gave for the necessity of enacting
63
Amendment One in Nebraska.
A final category consists of equal protection of the laws, which is
derived from a due process clause. West Virginia and Colorado have
constitutions that contain the precise language of the Fourteenth
Amendment with regard to its due process protection text, but they do
not explicitly require equal protection of the law. 64 Regardless of such
omission, West Virginia and Colorado courts have interpreted their
clauses to imply equal protection of the laws.6 5 Nebraska also has a
similar due process clause in its constitution, but the courts in Ne-
in civil and criminal cases. Incorporating Cities, Towns and Villages, or changing or amending the charter of any Town, City, or Village. Providing for the
election of Officers in Townships, incorporated Towns or Cities. Summoning or
empanelling Grand or Petit Juries. Providing for the bonding of cities, towns,
precincts, school districts or other municipalities. Providing for the management of Public Schools. The opening and conducting of any election, or
designating the place of voting. The sale or mortgage of real estate belonging
to minors, or others under disability. The protection of game or fish. Chartering or licensing ferries, or toll bridges, remitting fines, penalties or forfeitures,
creating, increasing and decreasing fees, percentage or allowances of public officers, during the term for which said officers are elected or appointed. Changing the law of descent. Granting to any corporation, association, or individual,
the right to lay down railroad tracks, or amending existing charters for such
purpose. Granting to any corporation, association, or individual any special or
exclusive privileges, immunity, or franchise whatever; Provided, that notwithstanding any other provisions of this Constitution, the Legislature shall have
authority to separately define and classify loans and installment sales, to establish maximum rates within classifications of loans or installment sales
which it establishes, and to regulate with respect thereto. In all other cases
where a general law can be made applicable, no special law shall be enacted.
NEB CONST. art. III, § 18. Note that the language does include the "privileges and immunities" language in its text. This may be where the equal protection of the law emanates, and if not for the additional special legislation wording, section 18 would be
included in the Privileges and Immunities Category of equal protection clauses.
62. See Haman v. Marsh, 237 Neb. 699, 467 N.W.2d 836 (1991).
63. Transcript of the Clerk II, supra note 21, at 533-34 (comments by Senator
Kristensen).
64. Two states have equal protection of the law that has been determined to reside
within their respective states' due process clauses: CoLo. CONST. art. II, § 25 (see Colorado Auto & Truck Wreckers Ass'n v. Department of Revenue, 618 P.2d 646. 655 n.7
(Colo. 1980)); W. VA. CONST. art. 3, § 10 (see Thorne v. Roush, 261 S.E.2d 72, 74 (W. Va.
1979)).
65. ColoradoAuto & Truck, 618 P.2d at 655 n.7; Thorne, 261 S.E.2d at 74.
CREIGHTON LAW REVIEW
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braska have never interpreted the due process clause as providing
66
equal protection.
As stated previously, the reason for such in-depth analysis of the
components of the equal protection clause is to provide a more accurate analysis of Nebraska's adopted Amendment One (LR 20CA). A
detailed analysis also provides an explanation for various state courts'
interpretations of their own state equal protection clauses. For instance, opponents of Nebraska's Amendment One have argued that
the amendment could make Nebraska vulnerable to the imposition of
same-sex marriages by the courts - similar to the situation in Hawaii. 67 However, Amendment One does not specify sex as a suspect
class, whereas Hawaii's equal protection clause does. 68 In order to determine if same-sex marriages and other consequences could arise in
Nebraska as a result of Amendment One, a study of the applicable
case law must be undertaken to determine how other state courts
have interpreted similar provisions in their own state equal protection
clauses. In addition, the differences between Amendment One and
other state equal protection clauses must be examined in the context
of the previous categories outlined above, in order to determine if such
contrasts explain the variations in outcome by the interpretations of
state courts.
C.
CASE LAW APPLYING STATE
1.
Method Used
EQUAL
PROTECTION CLAUSES
In researching the effects that state equal protection clauses have
on state laws and under what circumstances state courts will use
these clauses to expand the equal protection guarantees beyond that
of the United States Supreme Court, the search of case law was tailored. My search was limited to include only cases that contained an
expansion of the rights provided by the equal protection clause when
interpreted by state courts. In addition, the overall research focused
primarily on cases that involved arguments used by the opponents of
Amendment One to determine if such claims were relevant. The research also incorporates a small sampling of cases to show other effects of an expanded equal protection clause beyond that of
Amendment One's opponents' arguments.
66. The Nebraska Constitution provides: "No person shall be deprived of life, liberty, or property, without due process of the law." NEB. CONST. art. I, § 3. This is where
Amendment One will be inserted upon its enactment.
67. Transcript of the Clerk II, supra note 21, at 548-49.
68. HAW. CONST. art. I, § 5.
1998]
NEBRASKA EQUAL PROTECTION CLAUSE
627
2. Application of the Same-Sex MarriageArgument
The first argument often made against Amendment One is that
the provision will allow the Nebraska Supreme Court to interpret the
equal protection clause in a manner that will find statutory restrictions on same-sex marriages to be unconstitutional. The only case
currently involving the application of a state equal protection clause to
allow same-sex marriages is Hawaii's decision in Baehr v. Lewin.6 9 In
the Baehr case, same-sex couples filed applications for marriage
licenses in the State of Hawaii and were denied solely on the basis
that the applicants were of the same sex. 70 The same-sex couples filed
a complaint, alleging that their right to privacy and equal protection
71
- as guaranteed by the Hawaii Constitution - had been violated.
The Hawaii Supreme Court held that there was no fundamental right
to a same-sex marriage under the Hawaii Constitution with regard to
privacy considerations. 72 Notwithstanding, the court found that sex
was a suspect classification under the Hawaii Equal Protection Clause
73
and that classifications based on sex are subject to strict scrutiny.
The court remanded the case for a determination of whether the state
could show that the statute's sex-based classification was justified
under a compelling state interest, and whether the statute was narrowly drawn to avoid unnecessary abridgments of the applicant
couples' constitutional rights under Hawaii's equal protection
74
clause.
75
On remand, the Circuit Court of Hawaii found in Baehr v. Miike
that the state had "failed to sustain [its] burden to overcome the presumption that [the statute was] unconstitutional by demonstrating or
proving that the statute furthers a compelling state interest."76 Thus,
the court on remand found that restrictions against same-sex marriages are unconstitutional under Hawaii's equal protection clause.
The Hawaii Supreme Court, in applying strict scrutiny to the
marriage statute at issue in Baehr, noted:
The equal protection clauses of the United States and Hawaii
Constitutions are not mirror images of one another. The
fourteenth amendment to the United States Constitution
somewhat concisely provides, in relevant part, that a state
69. 852 P.2d 44 (Haw. 1993).
70. Baehr v. Lewin, 852 P.2d 44, 49 (Haw. 1993).
71. Baehr, 852 P.2d at 57-58.
72. Id. at 57.
73. Id. at 67.
74. Id. at 68.
75. Civ. No. 91-1394, 1996 WL 694235, at *1 (Haw. Cir. Ct. Dec. 3, 1996).
76. Baehr v. Miike, Civ. No. 91-1394, 1996 WL 694235, at *21 (Haw. Cir. Ct. Dec.
3, 1996). Note, this case is currently pending before the Hawaii Supreme Court.
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may not "deny to any person within its jurisdiction the equal
protection of the laws." Hawaii's counterpart is more elaborate. Article I, section 5 of the Hawaii Constitution provides
in relevant part that "[n]o person shall . .. be denied the
equal protection of the laws, nor be denied the enjoyment of
the person's civil rights or be discriminatedagainst in the exercise thereof because of race, religion, sex, or ancestry." (Emphasis added.) Thus, by its plain language, the Hawaii
Constitution prohibits state-sanctioned discrimination
against any person in the exercise of his or her civil rights on
77
the basis of sex.
Given this rationale, the court distinguished the expanded scope of
Hawaii's Equal Protection Clause due to the specified rights language
found in the Hawaii Constitution, which is not included in the Fourteenth Amendment.
In Nebraska, Amendment One does not include specified rights
language within the text of the clause. 78 Also, Nebraska has no additional clauses in its state constitution specifying that classifications
based on sex or gender are suspect classifications. Thus, the Nebraska
Supreme Court could not use the same justification that the Hawaii
Supreme Court used in Baehr to support a finding that a state statute
banning same-sex marriages was subject to a strict scrutiny review.
However, the Nebraska Supreme Court has the ability - under the
Adequate and Independent State Grounds Doctrine - to pronounce
that classifications based on sex are subject to strict scrutiny review.
If the Hawaii Supreme Court can find that restrictions against samesex marriages are afforded strict scrutiny review, then it is just one
step removed for the Nebraska Supreme Court to determine that
Amendment One can be interpreted as providing the same protection
based on the classification of sex. The court only needs to find that sex
is a suspect classification implied within the clause. Once such a conclusion is made, the Nebraska Supreme Court can then apply a strict
scrutiny review to the Nebraska Statute prohibiting same-sex marriages if it is challenged. 7 9 The state then would have to show that
the statute is necessary to achieve a compelling government interest.
The end result of such a decision by the court, if the state was unable
to show a compelling government interest, would be the ability of
same-sex couples to be married in the State of Nebraska.
77. Baehr, 852 P.2d at 59-60.
78. See supra note 3 and accompanying text.
79. LB 280, 95th Leg., 1st Sess. (1997). In 1997, the Nebraska State Legislature
attempted to place a ban on same-sex marriages by stating that same-sex marriages
would render the marriage void. Id. The bill was delayed until the 1998 Session of the
Legislature, at which time it failed to advance and was indefinitely postponed.
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NEBRASKA EQUAL PROTECTION CLAUSE
A case not involving the same-sex marriage issue is Commonwealth of Kentucky v. Wasson,8 0 in which the Supreme Court of Kentucky held that a criminal statute proscribing consensual homosexual
sodomy violates the privacy and equal protection guarantees of the
Kentucky Constitution. 81 The court based its decision on the rationale that the court was "not bound by decisions of the United States
Supreme Court when deciding whether a state statute impermissibly
infringes upon individual rights guaranteed in the State Constitution
so long as state constitutional protection does not fall below the federal floor, meaning the minimum guarantee of individual rights under
the United States Constitution."8 2 The court in Wasson used this rationale to overturn its ban on sodomy by requiring a rational basis test
under its equal protection clause.8 3 However, such a ruling conflicts
with the United States Supreme Court's decision in Bowers v. Hardwick, 8 4 where the Court, under the Fourteenth Amendment, found
that the Federal Constitution did not confer a fundamental right upon
homosexuals to engage in sodomy.8 5 Nevertheless, the Kentucky
Supreme Court was still able to find in its state constitution an avenue for the expansion of equal protection rights encompassing the activity of sodomy. Thus, the Wasson case illustrates the ability of
states to expand equal protection rights beyond those interpreted by
the United States Supreme Court under the Fourteenth Amendment.
3.
Application of the Equal School FinancingArgument
The second argument made against Amendment One is that, by
adopting the provision, it will enable the Nebraska Supreme Court to
interpret equal protection in such a way as to find that the state mandated financing schemes of public education - which do not result in
equal distributions of money - are unconstitutional. Under this scenario, a currently well-funded school district in Nebraska would be
required to receive an equal apportionment of educational financing
per pupil the same as a smaller, currently less-funded school district.
The end result would shift property tax dollars for public education
from school districts with a large tax base, and redistribute those
funds to school districts that have a smaller tax base.
A case on point is Tennessee Small School Systems v.
McWherter.8 6 In McWherter, the Tennessee Supreme Court applied
80. 842 S.W.2d 487 (1993).
81. Commonwealth v. Wasson, 842 S.W.2d 487, 488-89 (Ky. 1993).
82. Wasson, 842 S.W.2d at 492.
83. Id. at 500.
84. 478 U.S. 186 (1986).
85. Bowers v. Hardwick, 478 U.S. 186, 191 (1986).
86. 851 S.W.2d 139 (Tenn. 1993).
CREIGHTON LAW REVIEW
[Vol. 32
its state equal protection clause containing the "privileges and immunities" language.8 7 The court held that state funding of public school
systems violated the equal protection provision of the state constitution, and therefore the funding statutes were unconstitutional.8 8 The
court noted that funds spent per pupil by each county varied from
$1823 to $3669, and most of the variance was a result of the state's
reliance on local governments to fund education. The variation was a
result of the fact that school districtswith more sales, higher property
values and commercial development had more funds to educate their
children.8 9 The court also found that the Tennessee Equal Protection
Clause imposed an obligation on the State Assembly to maintain and
support a system of free public schools that afforded substantially
equal educational opportunities. 90 The court, in applying its state
equal protection clause, held that "[tihe proof before us fails to show a
legitimate state interest justifying the granting to some citizens, educational opportunities that are denied to other citizens similarly situated, and, thus, fails to satisfy even the 'rational basis' test applied in
equal protection cases." 9 1 Thus, even under a rational basis test, the
State of Tennessee was unable to meet the standard necessary to uphold its state-financing scheme for public education.
Under a similar ruling in Dupree v. Alma School DistrictNo. 30 of
Crawford County,92 the Arkansas Supreme Court, using its state
equal protection clause containing specified rights language, found
that its state public education financing scheme was in violation of the
provision. 9 3 The court found that the statutory public school financing
system denied equal protection to those school districts which were
property poor, and that there was a rational relationship between the
disparity caused by the system and the need of the individual districts. 94 The court noted that it could "find no legitimate state purpose to support the system. It bears no rational relationship to the
educational needs of the individual districts, rather it is determined
primarily by the tax base of each district."95 Therefore, the court in
Dupree, like McWherter, found a state public education-financing
scheme based on local property tax financing unconstitutional under
its state equal protection clause.
87.
88.
89.
90.
91.
92.
93.
1983).
94.
95.
Tennessee Small Sch. Sys. v. McWherter, 851 S.W.2d 139, 152-53 (Tenn. 1993).
McWherter, 851 S.W.2d at 156-57.
Id. at 143.
Id. at 140-41.
Id. at 156.
651 S.W.2d 90 (Ark. 1983).
DuPree v. Alma Sch. Dist. No. 30 of Crawford County, 651 S.W.2d 90, 91 (Ark.
DuPree, 651 S.W.2d at.93-95.
Id. at 93.
1998]
NEBRASKA EQUAL PROTECTION CLAUSE
631
Some courts have even interpreted the language of state equal
protection clauses to require strict scrutiny of state educational financing schemes. In Horton v. Meskill,96 the Connecticut Supreme
Court found that a system of public education financing, which depended primarily on local property taxes without regard to disparity
in the economic ability to finance an education program, could not
pass the test of strict judicial scrutiny. 97 The court noted that such
disparity in per pupil expenditures between school systems averaged
between $813 and $1245. 9 8 The court held under a provision in the
state constitution (other than the equal protection clause) that education was a fundamental right of the citizens of the State of Connecticut. 99 After labeling the right to an education as a fundamental right,
the court applied strict scrutiny to determine if the financing scheme
was acceptable under the state equal protection clause. 10 0 In Horton,
the court used a state provision providing for education as a fundamental right and applied a strict scrutiny test in interpreting its state
equal protection clause in order to overturn a school-financing scheme.
In addition, the West Virginia Supreme Court - in Pauley v.
Kelly' 01 - utilized the state's due process clause providing for equal
protection and overturned a state education financing scheme, because the state failed to show the requisite compelling state interest. 10 2 In doing so, the court established education as a fundamental
right. The plaintiffs in Pauley claimed that funding was "out of balance" in property poor counties as compared to school districts in more
wealthy counties. 10 3 The court noted that under the United States
Supreme Court's decision in San Antonio Independent School District
v. Rodriguez,10 4 the United States Constitution does not provide a
fundamental right to education.10 5 Taking this into account, the West
Virginia Supreme Court stated that "a state is not constrained by the
federal constitutional standard, but must examine its own constitution to determine its education responsibilities." 0 6 The court reasoned "Ib]ecause education is a fundamental constitutional right in
96. 376 A.2d 359 (Conn. 1977).
97. Horton v. Meskill, 376 A.2d 359, 374-75 (Conn. 1977).
98. Horton, 376 A.2d at 376.
99. Id. at 373-74.
100. Id. at 374-75.
101. 255 S.E.2d 859 (W. Va. 1979). See also State v. Bailey, 453 S.E.2d 368 (W. Va.
1994) (holding that education was a fundamental right and teacher financing scheme
was subject to application of strict scrutiny under the West Virginia Equal Protection
Clause).
102. Pauley v. Kelly, 255 S.E.2d 859, 878 (W. Va. 1979).
103. Pauley, 255 S.E.2d at 861.
104. 411 U.S. 1 (1973).
105. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973).
106. Pauley, 255 S.E.2d at 863-64.
CREIGHTON LAW REVIEW
[Vol. 32
this State, then, under our equal protection guarantees any discriminatory classification found in the educational financing system cannot
stand unless the State can demonstrate some compelling State interest to justify the unequal classification. 10 7 The court in Pauley, echoing the opinion in Horton, applied strict scrutiny to the education
financing scheme, thereby establishing education as a fundamental
right within its state.
There are additional cases dealing with school financing
schemes.108 The primary consideration for courts in such cases is the
disparity in per pupil input between "wealthy propertied" school districts and "poorer propertied" school districts. Nebraska public school
systems receive a substantial amount of funding from local property
taxes, which are distributed through the state tax system according to
an amount per pupil for average daily attendance. 10 9 Under the current structure of Nebraska's school financing scheme, the Nebraska
Supreme Court, using rationales similar to those found in Pauley and
Horton, could reasonably hold that the method used to finance Nebraska schools is unconstitutional under the equal protection clause
found in Amendment One.
Furthermore, the Nebraska Constitution contains a provision requiring that "[tihe legislature shall provide for the free instruction in
the common schools of this state of all persons between the ages of five
and twenty-one years." 0 Thus, the Nebraska Supreme Court could,
at some point, use this clause to construe education as a fundamental
right in Nebraska. At present, the Nebraska Supreme Court has not
chosen to declare education as a fundamental right, but with the enactment of Amendment One, the court could revisit its prior decisions
in order to determine if the amendment changes the prior application
of the law."' If the court chose to recognize education as a fundamental right, it must apply a strict scrutiny test whereby a compelling
107. Id. at 878.
108. Washakie Community Sch. Dist. No. One v. Herschler, 606 P.2d 310 (Wyo.
1980) (holding that the state's system of financing public education, based on local property taxes, was unconstitutional because it failed to afford equal protection in violation
of the state constitution); Serrano v. Priest, 557 P.2d 929 (Cal. 1977) (declaring that the
California public school financing system for public schools, which conditioned accessibility of funding upon district wealth, was violative of the state's equal protection
clause); Robinson v. Cahill, 303 A.2d 273 (N.J. 1973) (holding that public school financing leading to a great disparity in dollar input per pupil and also having no apparent
relation to a mandate calling for equal educational opportunities, violated the state
constitution).
109. NEB. REV. STAT. § 79-1060 (1996).
110. NEB. CONST. art. VII, § 1.
111. Kolesnick ex rel. Shaw v. Omaha Pub. Sch. Dist., 251 Neb. 575, 558 N.W.2d 807
(1997) (declaring that in the context of student discipline cases, there is no fundamental
state or federal constitutional right to education).
1998]
NEBRASKA EQUAL PROTECTION CLAUSE
633
state interest would have to be shown to allow Nebraska's school financing system to continue in its present form. Applying a strict scrutiny test would have the effect of placing a significant burden on the
state to justify a financing system that did not provide equal funding
with regard to per pupil expenditures.
In consideration of the relevant case law involving school financing issues, it appears the opponents of Amendment One made a credible argument with regard to equal protection challenges. As noted in
this analysis, there are numerous instances in which state courts have
applied their state equal protection clauses to mandate redistribution
of school district funds. Under Amendment One, it is a real possibility
that the Nebraska Supreme Court could rule similarly with regard to
school financing. Considering the language contained in the Education Article of the Nebraska Constitution, such an expansion of the
equal protection clause could also result in a strict scrutiny standard
and, ultimately, in the unconstitutionality of the current school financing system in Nebraska. Nonetheless, even without a finding
that education is a fundamental right, the courts in McWherter and
Dupree altered the education financing scheme in their respective
states based on the failure of the state statutes to meet even a rational
basis review.
4. Other Possible Effects of a State Equal Protection Clause
In researching the potential effects of Amendment One on Nebraska law, a number of additional cases were found which primarily
involve ceilings on liability limits and statutes of repose. For example,
in Hanson v. Williams County,1 12 the North Dakota Supreme Court
applied the state's "privileges and immunities" clause and held that
statutes of repose limiting a plaintiffs ability to seek relief in a product liability suit were subject to an intermediate standard of equal
protection analysis. 113 The court further held that statutes of repose
114
violated the equal protection provision of the state constitution.
The court established that the right to recover for damages was not a
fundamental right, but an important substantive right which necessitated an intermediate standard of equal protection review when applied to actions restricting the ability of a plaintiff to seek relief on
such a claim. 1 5 Subsequently, the court in Hanson, using its state
equal protection clause, found that the statute which did not allow
112. 389 N.W.2d 319 (N.D. 1986).
113. Hanson v. Williams County, 389 N.W.2d 319, 321-25 (N.D. 1986).
114. Hanson, 389 N.W.2d at 328.
115. Id. at 323-25.
CREIGHTON LAW REVIEW
[Vol. 32
causes of action on products outside of ten years after the purchase
1 16
date were unconstitutional.
Likewise, the Montana Supreme Court used its state's equal protection clause (containing specified rights language) to invalidate a
statute that limited tort liability of both the state and other political
subdivisions. In Pfost v. State,11 7 the court held that a statute passed
by the Montana Legislature limiting tort claims on political subdivisions was an invasion of a fundamental right granted under the Montana State Constitution."18 The court stated that "[a]ny state statute
that restricts, limits, or modifies full legal redress for injury to person,
property or character therefore affects a fundamental right and the
state must show a compelling state interest if it is to sustain the constitutional validity of the statute."1 19 Thus, the court in Pfost held
that the ability to recover for an injury is a fundamental right.
Although the question of liability award restrictions was not one
of the arguments posed by the opponents of Amendment One, the
holdings of Pfost and Hanson indicate that this area of Nebraska law
could be impacted by Amendment One. Such a result may affect the
ability of statutes of repose and other liability restricting statutes to
impose limits on the amount of legal awards. 120 The Nebraska
Supreme Court has previously held, in Radke v. H.C. Davis Sons'
Manufacturing Co., Inc.,121 that neither Nebraska's due process nor
equal protection clause were violated by a ten-year statute of repose
for product liability.' 22 However, with the enactment of Amendment
One, the Nebraska Supreme Court may be compelled to revisit its decision in Radke and rule that the statutes of repose are unconstitu23
tional under the equal protection clause found in Amendment One.1
D.
APPLICATION BY THE NEBRASKA SUPREME COURT
1.
Nebraska ConstitutionArticle III, Section 18
Even prior to Amendment One, Nebraska has had a clause in its
Constitution prohibiting special legislation and allowing equal protec116. Id. at 328.
117. 713 P.2d 495 (Mont. 1985).
118. Pfost v. State, 713 P.2d 495, 500, 505 (Mont. 1985).
119. Pfost, 713 P.2d at 503.
120. See Brannigan v. Usitalo, 587 A.2d 1232 (N.H. 1991) (holding that the state
equal protection clause was violated by imposing an $875,000 cap in personal injury
actions for non-economic losses).
121. 241 Neb. 21, 486 N.W.2d 204 (1992).
122. Radke v. H.C. Davis Sons' Mfg. Co., Inc., 241 Neb. 21, 486 N.W.2d 204, 205-06
(1992).
123. Allhusen v. State, 898 P.2d 878 (Wyo. 1995) (holding that provisions of licensing act of mental health professionals granting licensing exemptions violated Wyoming
state equal protection clause).
1998]
NEBRASKA EQUAL PROTECTION CLAUSE
tion. 124 Article III, section 18 "guarantees to Nebraskans equal protection of the law. This means the law must apply equally to everyone
or, if some people are penalized or benefited by the law, there must be
a rational basis for the exception." 12 5 Two cases essentially outline
the parameters of equal protection found in article III, section 18.
126
In the first case, Distinctive Printing & Packaging Co. v. Cox,
the Nebraska Supreme Court upheld the parental liability statute
under the Fourteenth Amendment of the United States Constitution
and article III, section 18 of the Nebraska Constitution. 12 7 In Cox, a
company sued the parents of a minor child for property damages allegedly caused by the minor child in setting a fire. In accordance with the
parental liability statute, parents may be held liable for damages
caused by their children. 128 In regard to this statute, the court stated:
article III, § 18, concerns itself with disparate treatment in
much the same manner as does the language of U.S. Const.
amend. XIV, which prohibits a state from making or enforcing any law which denies any person within its jurisdiction
"the equal protection of the laws." (citations omitted).
Although the power of classification rests with the Legislature of this state, a statute which makes an artificial and
baseless classification violates article III, § 18. (citations
omitted). The Legislature is permitted to classify persons as
long as, absent implication of a fundamental right or suspect
classification, the legislative categorization has a rational
basis.129
In Cox, the court applied a rational basis test and found that the
purpose of the statute was not meant to impose vicarious liability.
Thus, the statute was rationally related to the legitimate governmental purposes of compensating victims and deterring juvenile delinquency. 130 Accordingly, Nebraska clearly has had an equal protection
clause which - in circumstances involving a baseless or artificial classification made by the Legislature - will be reviewed under a rational
basis test as delineated in the Cox opinion.
The second case on point is Haman v. Marsh,13 1 in which the Nebraska Supreme Court struck down a statute that reimbursed deposi124.
NEB. CONST. art. III, § 18.
125.
ROBERT
D.
MIEWALD & PETER
J. LONGO,
THE NEBRASKA STATE CONSTITUTION: A
REFERENCE GUIDE 71 (Greenwood Press 1993).
126. 232 Neb. 846, 443 N.W.2d 566 (1989).
127. Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 854-55,443 N.W.2d
566, 572-73 (1989).
128. Cox, 232 Neb. at 848-49, 443 N.W.2d at 569.
129. Id. at 849, 443 N.W.2d at 570.
130. Id. at 854-55, 443 N.W.2d at 573.
131. 237 Neb. 699, 467 N.W.2d 836 (1991).
636
CREIGHTON LAW REVIEW
[Vol. 32
tors for losses incurred while investing their money with
Commonwealth Savings Company. 132 In Haman, the court held that
such legislation was invalid as special legislation under article III,
section 18, because it gave the state's credit to a private corporation in
"contravention" of the state constitution. 1 3 3 The defendants argued
that the rational basis test of article III, section 18 should be applied. 13 4 The court disallowed such application of the rational basis
test and noted: "In Nebraska both equal protection and the prohibition
against special legislation emanate from that constitutional provision. "135 Thus, instead of applying the equal protection part of article
III, section 18, the court applied the special legislation portion and
stated that "[t]he test of validity under the special legislation prohibition is more stringent than the traditional rational basis test."1 36 The
significance of Haman is that the court again recognized that article
III, section 18 provides for equal protection of the law, while alternatively utilizing the special legislation provision providing for a higher
level of scrutiny to reach its holding in the case.
2.
If Nebraska already has a State Equal Protection Clause, why
did we need Amendment One?
If interpretations of the Nebraska Constitution currently provide
equal protection, then why was it necessary for the Legislature to
adopt LR 20CA and place Amendment One before the voters? Senator
Kristensen answered this in his opening statement on LR 20CA:
Nebraska does have an equal protection concept in our
constitution. It is called our special legislation clause....
The Nebraska Supreme Court, in several cases, has used our
special legislation language in the constitution as our equal
protection clause. We want to make sure that by taking out
the old, archaic language in the other portion of the constitution, we do not destroy the concept of equal protection that is
already in this state and, thus, that is the reason we put in
some place else specifically equal protection under the law. 1 3 7
Senator Kristensen stated that his intention in proposing the constitutional amendment was to ensure that equal protection continued
to exist in the state constitution upon a possible amendment to article
132.
(1991).
133.
134.
135.
136.
137.
Haman v. Marsh, 237 Neb. 699, 703-04, 722, 467 N.W.2d 836, 841-42, 852
Haman, 237 Neb. at 711-12, 467 N.W.2d at 846.
Id. at 712, 467 N.W.2d at 846.
Id.
Id. at 713, 467 N.W.2d at 846-47.
Transcript of the Clerk II, supra note 21, at 533.
1998]
637
NEBRASKA EQUAL PROTECTION CLAUSE
III, section 18.138 However, according to the transcript of the hearing
held by the Constitutional Revision Commission in its discussion and
approval of LR 20CA, there is no mention of the need to adopt LR
20CA as a basis to ensure that such protection would be included after
a revision of article III, section 18 occurred. 13 9 As noted previously,
Dick Fellman, a member of the Constitutional Revision Commission,
stated in the February 20, 1996, hearing:
138. See Report of the Constitutional Revision Commission, 95th Leg., 1st Sess. 2527 (June 6, 1997) (containing the proposed revisions to article III, section 18). The
designation of the proposal in the Legislature was LR 18CA. This proposal stated:
The Members Of The Ninety-Fifth Legislature Of Nebraska, First Session, Resolve That:
Section 1. At the general election in November 1998 the following proposed
amendment to the Constitution of Nebraska shall be submitted to the electors
of the State of Nebraska for approval or rejection: To amend Article III, section
18: 111-18 "The Legislature shall not pass local or special laws in afty of the
following eoos, that is to so.
For granting diveres. Chogf-g the names of
peroonsorpplaco. Laying ouit, opnn altering an.d wal,, 5 red or hig
wy.Vacating roads, Town plat, stees aley, and pul gr,,t...cL. Locat
o cnhantging Couints scats. Regulating County and Towsi efficos.
Regulating tho praofcoe of Couirts of Justico Reg-u1ating the juidition and
dutios of Justicos of the Pooco, Polico Magistrate ad C t Hbe Prov-iding
er
.
......
l ...
....
......
ue.
I
t. g
,Towns
ofis.
and Vilages, or .. g..g
r amending the ehar-er f
Tny
..... Ct1, or 1Ai.
logo. Providing for the oloction of Officoro int Towsi ifte p t d EPW4e
Citios. Sti
~ ~lling
fte
Crand e
tJ
P
d
o h
5
beadig o.
.
. ...
ts, school dist...
..
tr
other muniiPaloties Pre-
vidiag for the mnanogomont of Putblic Schools The oeig
any
o
,
si
g
.
of voting. The.....
d
of
Pi-ct6ig
d1
or ... tg.go ef real
ostote belonging to mrs , or other tiador disability. Theoprotoction of games
or fish. ChoAoring or lioorsirng ferris, or toll bridges, remitting finos, penol
tios or forfcitxros, oreating, increasing and dooroasing fees,
.
......
or ol
lowonoes of public ffier, during the term for which said effiees ae lotcd or
app.nted. Changing the low of.d.sont. Cranting to any e-
tien, o..idivdual, thc right t
yd
chortcrs for suc.h pur..... Gr-
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indi'd
tel when a general law can be made applicable. The Legislatureshall not grant
any special or exclusive privileges, immunity, or franchise whatever to any corporation, association, or individual, except; PROGqDED, that notwithstanding
any other provisions of this Constitution, the Legislature shall have authority
to separately define and classify loans and installment sales, to establish maximum rates within classifications of loans or installment sales which it establishes, and to regulate with respect thereto. In all other eases wher a gentral
law ..
lx. ma^d.e
...... s
,~T shall.be--tet.d."
r1a
Section 2. The proposed amendment shall be submitted to the electors in
the manner prescribed by the Constitution of Nebraska, Article XVI, section 1,
with the following ballot language: "A constitutional amendment to prohibit
special legislation and eliminate references to certain categories of special legislation. For/Against."
Neb. LR 18CA. Note that LR 18CA advanced to General File during the 1997 Legislative Session, but it failed to get passed during the 1998 Legislative Session. For the
resolution to be adopted, it must be re-introduced during the 1999 Legislative Session.
139. Transcript of the Constitutional Revision Commission, 95th Leg., 1st Sess. 3438 (Feb. 16, 1996).
CREIGHTON LAW REVIEW
[Vol. 32
I was amazed to discover that [the equal protection
clause] isn't in the Nebraska Constitution.... I think there
could be some interesting applications [of the equal protection clause]. For instance, just as an example, when the argument is made that children are entitled to an education
and when it was pointed out that there is a tremendous difference in the amount of expenditure per pupil from district
to district in this state, I think a clever lawyer could say that
that raises an equal protection question ....
I think there
would be countless other examples and it would seem to me
that the Constitution of the state should have this clause in it
for reasons that are obvious.., and, frankly, for opening the
door to a discussion and expansion of [the equal protection of
140
the law] in many other areas.
Thus, the discussion of the Constitutional Revision Commission
indicates that the intent of Amendment One is not to ensure that state
equal protection of the laws be maintained after a revision of article
III, section 18. Rather, it appears the intention (of at least one member of the commission) was for expansion of equal protection of the
laws into areas not currently applicable under article III, section 18,
such as the redistribution of school district educational funds.
A previous attempt was made in 1993 to alter Nebraska's current
school financing scheme under an equal protection argument. In
Gould v. Orr,14 1 the plaintiffs filed a petition stating that the state's
statutory scheme for financing public schools denied them equal protection of the law in violation of the Nebraska Constitution. 1 4 2 The
plaintiffs in Gould alleged that approximately 75% of the budget of
each school district was financed by local tax revenue and that the
remaining 25% was provided by the state.' 43 The plaintiffs established that the disparity between the school districts was $7119.97 per
pupil expenditure for the wealthiest property district - as compared
to only $1313.46 per pupil for poorer school districts within the
state. 4 4 After reviewing the petition, the court held that the plaintiffs failed to state a claim under article III, section 18, because the
petition did not show that unequal funding of schools affected the
14 5
quality of education students were receiving.
The enactment of Amendment One may give the court additional
grounds upon which to find a legitimate claim. With Amendment
One, the Nebraska Supreme Court could hold that a proper claim was
140.
141.
142.
143.
144.
145.
Id. at 36 (emphasis added).
244 Neb. 163, 506 N.W.2d 349 (1993).
Gould v. Orr, 244 Neb. 163, 164, 506 N.W.2d 349, 350 (1993).
Gould, 244 Neb. at 165, 506 N.W.2d at 351.
Id.
Id. at 168-69, 506 N.W.2d at 353.
1998]
NEBRASKA EQUAL PROTECTION CLAUSE
established in circumstances like those presented in Gould - as
courts have done in similar cases across the United States - under an
explicit equal protection clause rather than an implied equal protection clause like the one found in article III, section 18. If such a scenario were to occur, the current state financing scheme could be held
unconstitutional and property tax revenue would then be redistributed among school districts to provide for equalization of school
146
financing.
3. Future Application of Amendment One
Now that Amendment One has been adopted, the Nebraska
Supreme Court will be required to interpret the equal protection
clause under a number of guidelines. As mentioned earlier, under the
Adequate and Independent Grounds Doctrine, the court will not be
able to construe Amendment One as providing for less protection than
afforded by the United States Constitution. However, the court may
provide for a greater degree of protection than afforded by the United
States Constitution, because states may interpret provisions in their
own state constitutions on independent grounds, whereas a similar review by the United States Supreme Court is not permissible. 147 Thus,
if the Nebraska Supreme Court uses an adequate and independent
state ground when applying Amendment One, then the United States
Supreme Court would not be able to overturn a decision that enhanced
the scope of Nebraska's equal protection of the laws.
The Nebraska Supreme Court may be limited in its expansion of
Amendment One's equal protection of the laws if the amendment is
shown to be ambiguous, unclear, or where the intent of the electorate
does not support such an expansion. The adoption by the legislature
of a proposed amendment does not per se amend the Nebraska Constitution - only the electorate can amend the constitution by subsequently adopting the proposal by a majority vote. Because of this
process, the courts look to the intent of the electorate in determining
146. Senate Speaker Withem stated during Select File floor debate that in order to
have the courts apply LR 20CA "you have to have a set of judges who have a desire to
In our state, our court to date has
find a state funding formula unconstitutional ....
indicated they don't have a desire to do this. They were given the opportunity in the
Gould case, they chose not to do this." See Transcript of the Clerk, supra note 6, at
3613. Speaker Withem's comments fail to take into account that the Nebraska Supreme
Court's membership is forever changing in its makeup. Two justices either resigned or
were removed in 1996. By changing the constitution and stating that such application
by the Nebraska Supreme Court will not occur because of its membership during the
Gould case in 1993 attempts to shift focus away from what effects the amendment
would have on future courts in the state.
147. See supra note 31 and accompanying text.
CREIGHTON LAW REVIEW
[Vol. 32
how to apply a constitutional amendment. 148 Under Nebraska Revised Statute section 49-205, the law requires that in order for a legislative resolution to become a constitutional amendment, a majority of
electors must adopt the amendment, "provided the votes cast in favor
of such amendment shall not be less than thirty-five percent of the
total votes cast at such election ...,,149 Once adopted, the Nebraska
Supreme Court will only construct a constitutional provision when it
has been demonstrated that the meaning of the provision is not clear
and construction is necessary. 150 Where the words of the amendment
are plain, direct and unambiguous, no interpretation is needed to ascertain the meaning and a mere reading will suffice. 15 1 To determine
the intent of the voters in adopting a constitutional provision, the Nebraska Supreme Court reviews the words of the initiative amendment
itself.152 In determining the intent of an amendment, the court must
153
hold that the voters intended what the language employed imports.
Thus, the court will only apply the intent of the electorate if the
amendment - on its face - is broad and ambiguous.
In addition, under Nebraska Revised Statute section 49-202.01,
the Nebraska Legislature outlined the procedure by which ballot language is placed into a constitutional amendment proposal. 154 The
statute specifies:
When any proposal submitted by the Legislature is placed on
the ballot for a vote of the electorate of the entire state, a
statement in clear, concise language explaining the effect of a
vote for and a vote against the proposal shall be printed immediately preceding the ballot title. Such statement shall be
prepared by the Executive Board of the Legislative
Council. . .. 155
The statute requires that the Executive Board of the Legislative
Council prepare the language to be incorporated alongside the text of
148. See Cunningham v. Exon, 207 Neb. 513, 300 N.W.2d 6 (1980) (holding that
because the adoption of a constitutional amendment is determined by the electorate,
voter intent must be considered).
149. NEB. REV. STAT. § 49-205 (Reissue 1993).
150. See State ex rel. Stenberg v. Douglas Racing Corp., 246 Neb. 901, 524 N.W.2d
61 (1994) (holding that the statutes were unambiguous and thus, no construction was
necessary).
151. See State ex rel. Caldwell v. Peterson, 153 Neb. 402, 45 N.W.2d 122 (1950).
152. See State ex rel. Spire v. Public Employees Retirement Bd., 226 Neb. 176, 410
N.W.2d 463 (1987) (holding that to determine voter intent in adopting an amendment,
the words of the initiative must be reviewed).
153. See Ramsey v. Gage County, 153 Neb. 24, 43 N.W.2d 593 (1950) (holding that
the words of a constitutional provision are to be read according to their obvious
meaning).
154. NEB. REV. STAT. § 49-202.01(1) (Cum. Supp. 1994).
155. Id.
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the constitutional amendment. 156 It is from this language, and the
language of the resolution itself, that the Nebraska Supreme Court
will interpret the intent of the electorate if it finds that Amendment
One - by itself - is not plain, direct and unambiguous.
Because Amendment One does not provide explicitly for protections of classifications based on race, color, sex, creed or handicap, and
if the court finds that Amendment One is not plain, direct or unambiguous with regard to such classifications, then the court will apply the
amendment based on the intent of the electorate. 15 7 In determining
this intent, the court must not hold that the electorate intended anything different from what the language employed imports. 158 If it can
be shown that it was not the intent of the voters to pass an equal protection clause amendment that would include acceptance of same-sex
marriages or equitable distribution of school property tax dollars
within the state of Nebraska, then the Nebraska Supreme Court
would be obligated (under its previous rulings) to disallow such an expansion of the equal protection clause. Therefore, the ballot language
drafted by the Executive Board of the Legislature is important, because the Nebraska Supreme Court could use that language to ascertain the intent of the electorate. Such ballot language could have an
effect on the application of Amendment One if the court chooses to
take into account the intent of the electorate in order to determine the
scope of the state equal protection clause. 159
156. The makeup of the Executive Board of the Legislative Council is defined under
Nebraska Revised Statute section 50-401.01. Section 50-401.01(1) provides:
The Legislative Council shall have an executive board, to be known as the Executive Board of the Legislative Council, which shall consist of a chairperson, a
vice-chairperson, and six members of the Legislature, to be chosen by the Legislature at the commencement of each regular session of the Legislature when
the speaker is chosen, and the Speaker of the Legislature. The Legislature at
large shall elect two of its members from legislative districts Nos. 1, 2, 15, 16,
21, 23 to 30, 32, 34, 35, and 46, two from legislative districts Nos. 3 to 14, 20,
31, 39, and 45, and two from legislative districts Nos. 17 to 19, 22, 33, 36 to 38,
40 to 44, and 47 to 49. The Chairperson of the Committee on Appropriations
shall serve as a nonvoting ex officio member of the executive board whenever
the board is considering fiscal administration.
NEB. REV. STAT. § 50-401.01(1) (Supp. 1997).
157. See supra note 150 and accompanying text.
158. See supra note 153 and accompanying text.
159. The language used on the November 1998 General Election Ballot for LR 20CA
was decided on May 20, 1998, during a meeting of the Executive Board of the Legislature. The ballot language read as follows:
A vote FOR this proposal will amend section 3, Article I (the Bill of Rights), by
adding to the due process of law clause an equal protection clause providing
that no person shall be denied "the equal protection of the laws."
A vote AGAINST this proposal will not add an equal protection of the laws
clause to section 3 of Article 1.
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IV. CONCLUSION
The purpose of this analysis is not to determine whether same-sex
marriages should be allowed, or whether a school finance tax scheme
should be based on principles of equitability. Rather, the article is
intended to focus on the potential changes that could occur in Nebraska Law now that Amendment One has been adopted.
The proponents of Amendment One have declared that there will
be little substantive change under the adopted amendment, because
Nebraska already has an equal protection clause in article III, section
18. However, this declaration fails to take into account that, by inserting a new clause into the Nebraska Constitution, the Nebraska
Supreme Court is no longer bound by its prior decisions in which
equal protection of the laws was found in article III, section 18. In
light of Amendment One's passage, the Nebraska Supreme Court will
be obligated to revisit its application of the law of equal protection
under the Nebraska Constitution. 160
Amendment One explicitly defines equal protection. Where the
court previously might have been tacitly cautious or conservative in
its approach by using an implied equal protection of the laws analysis
found within a special legislation clause under article III, section 18,
the court will not have these similar restraints under Amendment
One. The word "equal," in and of itself, is often inconsistently used by
the courts when interpreting equal protection clauses. Whether the
word means equal under the law, equally applied, all persons are
equal, equal rights, or equal amounts of financing for schools, are the
concepts often confused and left to the courts for a determination of
which connotation is relevant.
Clearly, there are questions which arise as to the manner and intent members of the Constitutional Revision Commission had in proposing and adopting Amendment One. Was it purely a symbolic
attempt to explicitly define equal protection of the laws, or was it a
backdoor attempt to institute same-sex marriages and a property tax
system of redistribution within the state via the judiciary? Whatever
The language is required to be delivered to the Nebraska Secretary of State's office for
placement on the ballot at least four months prior to the actual election, according to
Janice Satra, Executive Board Committee Counsel.
160. At his testimony to the Committee on the Judiciary during hearing resolutions
LR 20CA and LR 19CA, Nebraska Attorney General Don Stenberg testified that "[ijf...
the Legislature and the people put this in the constitution, the court is going to look at
that and say, well, they must have meant to do something in addition to what we've
already said. They must have intended us to somehow go farther or be more active in
doing this because surely they wouldn't go to the trouble of amending the constitution to
change nothing. The court is going to look at this and say something here is new." See
Transcript of the Committee on the Judiciary, 95th Leg., 1st Sess. 88 (Jan. 22, 1997).
1998]
NEBRASKA EQUAL PROTECTION CLAUSE
643
the true nature of Amendment One, the reality remains that now that
Amendment One has been adopted by the electorate, this will enable
the Nebraska Supreme Court to review the concept of equal protection
anew. Therefore, the impact from a possible enlargement of the scope
of the law of equal protection under the state constitution could drastically change the institution of marriage and the school financing system (to name only two) within the State of Nebraska.
644
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