By Bob Roehr
Lincoln– A federal judge struck down the Nebraska constitutional amendment that banned marriage for same-sex couples and recognition of any other type of relationship between such couples. The May 12 decision called the amendment overly broad and restrictive of gays' access to the political process. It will be appealed.
In 2000, 70 percent of voters passed what became Section 29 of the Nebraska Constitution. It declared: "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."
In 2003 at the request of a state legislator, the Nebraska Attorney General issued an opinion that the amendment prohibited the legislature from adopting a bill to allow a domestic partner with power of attorney to dispose of that partner's remains.
US District Judge Joseph Batallion found "that Section 29 is indistinguishable from the Colorado constitutional amendment" that the US Supreme Court struck down in Romer v. Evans. That landmark 1996 equal protection decision found that Colorado's antigay Amendment 2 excluded gays from the political process and thus was unconstitutional.
"Like the amendment at issue in Romer, Section 29 attempts to impose a broad disability on a single group," he wrote. "Also, as in Romer, the lack of connection between the reach of the amendment and its purported purpose is so attenuated that it provides evidence that Section 29 has no rational relationship to any legitimate state interest.
"Moreover, the court finds that Section 29 was designed against the class it affects, making it status-basedÉ[It] goes so far beyond defining marriage that the court can only conclude that the intent and purpose of the amendment is based on animus against the class" of people known as gay or lesbian.
Batallion also concluded that the amendment "operates to prohibit persons in a same-sex relationship from working to ever obtain governmental benefits or legal recognition, a right they had before the passage of Section 29." He agreed with plaintiffs' argument that it was "an unconstitutional bill of attainder."
David Buckel, an attorney with Lambda Legal, one of the groups that filed the lawsuit, said the amendment was "in its own class as the most extreme, antigay law in the entire nation….This anti-gay-union law, in effect, hung a sign on the door of the legislature saying 'same-sex couples not allowed.'"
"The judge was clear that states can't enact amendments that bar gay people from the democratic process," said Amy Miller. The attorney with the ACLU of Nebraska helped to argue the case. "This decision doesn't mean that gay people can marry, get a civil union, or a domestic partnership, but it guarantees gay people the right to lobby their state lawmakers for those protections."
Social conservatives wasted no time in criticizing the decision. "This is a blatant display of judicial arrogance where a non-elected federal judge has shown total disregard for what 70 percent of Nebraska voters stated, marriage is between one man and one woman," said Tony Perkins, president of the Family Research Council.
"The democratic voice of the people of Nebraska was muted today by a federal judge," said Matt Daniels in Washington, D.C. He is president of the Alliance for Marriage, which is pushing for the Marriage Protection Amendment to the US Constitution. He said it is coming down "to a race between the [MPA] and the American courts."
Local editorials, if not wholely embracing the decision, sought a workable political compromise.
The Lincoln Journal Star called Batallion's decision "a classic illustration of why federal judges are not electedÉbecause 70 percent of those who voted in the 2000 election supported the amendment doesn't make it automatically constitutional. The law is not simply about majority rule."
"Politicians were quick to bloviate," began an editorial by the Omaha World-Herald in urging everyone to "just take a deep breath and consider all of the options."
It urged the legislature's dominant Republicans to "spare the taxpayers the expense of an appeal" and it outlined a compromise that would "keep the definition of marriage as it stands – one man and one woman – even while negotiating a domestic partnership law."
That outcome might not be as remote as the 2000 vote suggests. The same day that the court decision came down, the legislature fell only one vote short of adding sexual orientation protection for all state employees to the state budget bill. But by a 25 to 11 vote it did add that protection for employees at four state research institutions.
