Supreme Court rulings have no impact on Nebraska's same-sex marriage ban

2013-06-26T21:50:00Z 2013-07-28T21:50:05Z Supreme Court rulings have no impact on Nebraska's same-sex marriage banBy KEVIN O'HANLON / Lincoln Journal Star

Two controversial U.S. Supreme Court rulings Wednesday will not affect Nebraska's voter-approved ban on same-sex marriages, an expert in constitutional law said.

The only ways Nebraska's ban — which is in the state constitution — could be overturned would be for voters to repeal it or for a court to find it in violation of the U.S. Constitution, said Eric Berger, an associate professor of law at the University of Nebraska College of Law.

The high court struck down both the Defense of Marriage Act, the 1996 law which prohibited the federal government from providing benefits to legally married gay couples, among other things, and California's Proposition 8, which repealed the state's gay marriage law.

"The Supreme Court's two rulings today ... have no immediate impact on Nebraska," Berger said.

The DOMA case, United States v. Windsor, was decided 5-4, as was the Proposition 8 case, Hollingsworth v. Perry.

As a result of Windsor, Berger said, "same-sex couples who are legally married in states that do have same-sex marriage — Iowa, New York, Massachusetts, etc. — now enjoy the same benefits of marriage under federal law that opposite-sex couples have long enjoyed.

"But Nebraska does not extend marriage to same-sex couples, so Windsor has no direct effect on Nebraska right now," he said.

Berger noted that DOMA includes a provision that allows states to refuse to recognize same-sex marriages performed under the laws of other states.

"That provision was not at issue in the case decided today," he said. "Perhaps someday that provision will be challenged, but it is unaffected by today's decisions."

As for the Perry ruling, Berger said, "the court dismissed that case on standing grounds, so it did not reach the merits of the same-sex issue case more generally. So it also does not have any effect on Nebraska."

With today's action by the high court, same-sex marriages now are allowed in 13 states, in addition to the District of Columbia.

Susan Parnas Frederick, senior federal affairs counsel for the National Conference of State Legislatures, said same-sex couples living in those states now are eligible for all federal marriage benefits.

“Outside of these states, federal marriage benefits become more complicated, as many commonly thought of federal benefits, such as jointly filing on federal income taxes, are tied to a married couple's place of residence," Frederick said. "There are currently no states that prohibit same-sex marriage while recognizing same-sex marriages performed in other states. If a same-sex couple residing in a state that doesn't allow same-sex marriage gets married in a state that does, then returns home, whether or not they're now eligible for federal marriage benefits can vary depending on the benefit.”

There are 35 states that prohibit same-sex marriage, although three -- Colorado, Hawaii and Illinois -- allow for civil unions, according to NCSL. New Jersey and New Mexico have no laws allowing for or prohibiting same-sex marriage.

Nebraska's constitutional ban on same-sex marriages was approved by about 70 percent of voters in 2000.

It says: "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."

The amendment was challenged in federal court by Citizens for Equal Protection, Nebraska Advocates for Justice and Equality and the American Civil Liberties Union.

In 2005, U.S. District Judge Joseph Bataillon ruled the ban was too broad and deprived gay men and lesbian women of participation in the political process, among other things.

He said the ban "is a denial of access to one of our most fundamental sources of protection, the government."

"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," Bataillon said.

Nebraska's ban "imposes significant burdens on both the expressive and intimate associational rights (of gays and lesbians) and creates a significant barrier to the plaintiffs' right to petition or to participate in the political process," he said. "(It) goes far beyond merely defining marriage as between a man and a woman. ... The 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."

But the next year, the 8th U.S. Circuit Court of Appeals overturned Bataillon's ruling, saying 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."

Reach Kevin O'Hanlon at 402-473-2682 or

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