Opponents of Nebraska’s constitutional amendment that defined marriage as a union between a man and a woman considered their options Friday after an appeals court reinstated the law.
A three-judge panel of the 8th U.S. Circuit Court of Appeals said the state had legitimate interests —among them, encouraging heterosexual couples to bear and raise children in committed marriages — in codifying the traditional definition of marriage.
The decision reversed a ruling by U.S. District Judge Joseph Bataillon striking down the law in April 2005.
“The Supreme Court long ago declared, and recently reaffirmed, that a State ‘has an absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created,’” Judge James Loken of Minneapolis wrote Friday.
“… We hold that (the amendment) and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.”
Opponents of the amendment have claimed it was intended to punish gay and lesbian couples. They also argued the measure placed unconstitutional restrictions on gay and lesbian couples’ ability to lobby lawmakers.
For example, opponents have said, the amendment would discourage gay couples from lobbying state lawmakers for legislation that would expand the a couple’s right to make medical decisions if one of them became incapacitated.
Lawmakers could simply say such legislation would give the couple legal standing, and thus violate the constitution, opponents said.
Approved by 70 percent of Nebraska voters in 2000, the amendment not only defined marriage as a heterosexual union, but also declared same-sex civil unions and domestic partnerships invalid.
David Buckel, an attorney with the New York-based Lambda Legal Defense and Education Fund, said the organization was considering either asking the entire 8th Circuit Court to consider the case, or appealing the issue to the U.S. Supreme Court.
Lambda and the American Civil Liberties Union’s Lesbian and Gay Project, on behalf of several gay couples, sued the state over the amendment in the federal court in Omaha in 2003.
Buckel said the court Friday wrongly focused on marriage and ignored the plaintiffs’ central argument — that the amendment infringed on their ability to petition lawmakers.
“What hit me hard is that I couldn’t find our case anywhere in the decision,” Buckel said. “I think the court misunderstood what the case was about. We never asked for the right to marriage.”
Attorney General Jon Bruning said the court addressed the plaintiffs’ argument regarding access to government, and soundly rejected it. “This is a major win for Nebraskans,” he said.
He said nothing in the amendment prohibited opponents from initiating their own petition drive in support of gay rights.
“You still have the right to advocate, you just don’t have the right to a guaranteed win,” he said.
Bruning said the ruling was the first by a federal appeals court in the country.
More than 40 states have laws that limit marriage to heterosexual couples. Only one state, Massachusetts, permits gay couples to marry.
Last week, New York’s court of appeals voted 4-2 to deny gay couples the right to marry. Also last week, Georgia’s highest court reinstated a constitutional amendment banning gay marriages.
A ruling in a New Jersey case could come in August, and cases are pending in several other state courts.
Also Friday, the Tennessee State Supreme Court dismissed a lawsuit filed by the ACLU that argued the state failed to meet its notifications requirements for a ballot measure asking voters to ban gay marriages, The Associated Press reported.
Opponents of the Nebraska amendment have called it the most restrictive in the nation because it outlawed civil unions and domestic partnerships, as well as gay marriages.
In his ruling last year, Bataillon said the amendment was designed, at least in part, to punish.
He wrote: “The evidence supports plaintiffs’ contention that adoption of (the amendment) was motivated, to some extent, either by irrational fear of or animus toward gays and lesbians.”
The appeals court rejected that finding Friday.
“(T)he argument disregards the expressed intent of traditional marriage laws — to encourage heterosexual couples to bear and raise children in committed marriage relationships,” Loken wrote.
He continued: “Whatever our personal views regarding this political and sociological debate, we cannot conclude that the state’s justification ‘lacks a rational relationship to legitimate state interest.’”
Al Riskowski of the conservative Nebraska Family Council praised Friday’s ruling. The Family Council supported the petition drive that put the proposed amendment before voters.
“We feel like the will of the people has been validated,” he said.
Riskowski said the appeals court correctly ruled the amendment was not motivated by bigotry.
“This was not about hated of homosexuals,” he said. “Nebraskans voted simply to uphold traditional marriage.”
He said the court was also correct in upholding the ban on what Riskowski described as “look-alike marriages,” domestic partnerships and civil unions.
“The Eight Circuit saw (the entire amendment) as one definition,” he said. “That was really significant.”
Pauline Balta, president of the local chapter of Parents, Families and Friends of Lesbians and Gays, or PFLAG, likened the ruling to ” a punch in the gut.”
Balta, who has a daughter who is lesbian, vowed to continue the fight. “We will take this to the next level,” she said.
“OK, now we’re going to have to get busy again … We want our loved ones to have the security and the benefits that go along with being able to legally commit to the ones they love.”
Nebraska Gov. Dave Heineman applauded the ruling.
“All stable societies base their successes on the unique bonds of the family structure, and I am pleased that we can define marriage as between a man and a woman,” he said in a news release.
Reach Clarence Mabin at email@example.com or 473-7234.
History of the ban
May 2000: The Nebraska Family Council announces plans to circulate a petition to get a ban on same-sex marriages on the ballot, forming The Defense of Marriage Amendment Committee.
July 2000: Calling a proposed constitutional amendment to ban same-sex marriages “radical, discriminatory and unnecessary,” groups led by Nebraska Advocates for Justice and Equality rally outside the Capitol.
The Defense of Marriage Amendment Committee turns in petitions containing signatures from the required 155,000 voters to get the measure on the ballot.
September 2000: The Mormon Church, the Catholic Conference and the Nebraska Coalition for the Protection of Marriage, a statewide nonprofit organization, form a second group to lobby for the ban.
November 2000: Initiative 416 — keeping the state from recognizing all marriages, civil unions, domestic partnerships or other similar relationships between same-sex couples — is adopted with 70 percent of the vote.
The Nebraska chapter of the American Civil Liberties Union says it will file a federal lawsuit challenging the ban.
May 2005: U.S. District Judge Joseph Bataillon of Omaha declares the ban unconstitutional, ruling that it “imposes significant burdens on both the expressive and intimate associational rights (of gay men and lesbian women) and creates a significant barrier to the plaintiffs’ right to petition or to participate in the political process.”
Attorney General Jon Bruning appeals the ruling to the 8th U.S. Circuit Court of Appeals.
Friday: The 8th U.S. Circuit Court of Appeals overturns Bataillon’s earlier ruling. The court said the amendment “and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States.”
— The Associated Press