May 20, 2005

Nebraska marriage ban struck down

Judge says amendment�s other prohibitions,
similar to Ohio�s, go too far

by Anthony Glassman
with wire reports

Lincoln, Nebraska--A federal judged ruled on May 12 that the state�s constitutional ban on same-sex marriage goes too far, shutting people out of the democratic process.

The ruling focused on the measure�s second sentence which, like Ohio�s, bars recognition of civil unions and other types of non-marital relationships.

U.S. District Judge Joseph Bataillon wrote that Section 29 of the Nebraska constitution, one of the most wide-ranging marriage bans in the nation, �goes far beyond merely defining marriage as between a man and a woman.� Its �broad proscriptions could also interfere with or prevent arrangements between potential adoptive or foster parents and children, related persons living together, and people sharing custody of children as well as gay individuals,� he noted.

Bataillon found that the measure has much in common with Colorado�s Amendment 2, which barred the state from passing any gay equal rights laws. He quoted the Supreme Court�s 1996 Romer v. Evans decision, which struck that amendment down because it shut a group out of the political process for simply being disliked.

�The court finds Section 29 is a denial of access to one of our most fundamental sources of protection, the government,� he wrote. �Such broad exclusion from �an almost limitless number of transactions and endeavors that constitute ordinary civil life in a free society� is �itself a denial of equal protections in the literal sense�.�

Nebraska attorney general Jon Bruning said that he would appeal the ruling. While the state has no law barring same-sex marriage, Bruning said that they were not legal before the amendment and would not be legal now.

�It has been four long years waiting to be allowed to lobby our own senators,� said M.J. McBride, the president of the Nebraska group Citizens for Equal Protection. �It�s great to see that democracy may be back in action in our great state.�

Citizens for Equal Protection filed the suit with Lambda Legal Defense and Education Fund and the American Civil Liberties Union�s Gay and Lesbian Rights Project, and a number of LGBT couples who argued that the amendment barred them from legal protections taken for granted by married heterosexuals.

Same-sex marriage foes are using the ruling as fodder in their campaign to push for a federal amendment like the Nebraska one. Such a measure would trump Bataillon�s ruling.

�The traditional institution of marriage now is clearly in need of federal protection, now more than ever,� said Sen. John Cornyn of Texas. �This ruling is a vivid reminder that opponents of traditional marriage have not given up their effort to overturn the will of the people.�

Lambda Legal attorney David Buckel countered Cornyn�s statement.

�These folks didn�t get marriage, they didn�t even get domestic partnership benefits,� Buckel said. �All they got was the right to go to their own elected officials and ask for domestic partnership benefits.�

�If what this decision means is that we�ve restored the democratic process, why is that so scary?� Buckel concluded.

Nebraska passed its constitutional marriage ban amendment in 2000, the third state to do so. Today there are 18 state with such measures. Eleven of them also bar recognition of other relationships, with varying degrees of broadness.

The Ohio Constitution�s Article 15, Section 11, passed last November as Issue 1, is as far-reaching as Nebraska�s ban.

Nebraska�s Section 29 reads, �Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.�

Ohio�s version begins, �Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions.� Then it adds: �This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage.�

Judge Bataillon�s ruling affects only the Nebraska amendment.

The Ohio amendment is already causing disputes as an increasing number of judges here have ruled that it removes domestic violence protections for unmarried couples, whether same-sex or opposite-sex.

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