Marriage by same-sex couples (SSM)
Part 1: 2015-MAR-02: Nebraska:
Lack of protections for the LGBT community.
Public opinion poll. Two district Court rulings
favor marriage equality. Same-sex couples
hoped to be able to marry starting MAR-09.
Throughout this web site, the term "LGBT" refers to the
lesbian, gay, bisexual, transgender/transsexual community.
"SSM" refers to marriage by same-sex couples.
2015-MAR-01: The state of Nebraska has had an almost perfect record of discrimination against sexual minorities:
According to the Human Rights Campaign (HRC) -- a major national group promoting equal rights for the LGBT community -- Nebraska has an almost perfect record of supporting -- or at least ignoring -- discrimination against the LGBT community. 1
The state of Nebraska:
- Has no laws protection persons from discrimination in housing on the basis of their sexual orientation or gender identity.
- Does not permit second parent adoption (a.k.a. joint adoption). A child being raised by two parents in a same-sex relationship cannot be adopted by the parent who is not the child's genetic parent.
- Does not permit single parent adoption in which an single member of the LGBT community adopts a child.
- Has no laws protection persons from discrimination in employment on the basis of their sexual orientation or gender identity.
- Has no human rights legislation that protects persons from discrimination by retail outlets and other public accommodations on the basis of the person's sexual orientation or gender identity. A "public accommodation" is typically a retail outlet or other business that offers goods and/or services to the general public.
- Does not allow same-sex couples to be married within the state. Nebraska Initiative Measure 416 (2000) amended the state Constitution to ban same-sex marriage, civil unions and domestic partnerships. It also bans recognition marriages by same-sex couples solemnized out-of-state. The SSM ban was passed in 2000-NOV by a vote of 67.5% in favor to 28.8% opposed. 2
However there were two bright spots in Nebraska's treatment of same-sex couples:
- On 2015-FEB-03, the Nebraska Legislature voted unanimously to recognize spouses of military members when they apply for a gun permit. 3
- Although Nebraska had barred same-sex couples from becoming foster parents, they abandoned the policy on 2015-FEB-27.
Ellen Kahn, director of HRC Foundation’s Children, Youth & Families Program, said:
“Nebraska's change in policy not only puts an end to years of misguided discrimination against the LGBT community, but, more importantly, it allows child welfare agencies to expand the pool of foster and adoptive families for Nebraska's children." 4
2014- OCT: SSM Public opinion poll in Nebraska:
The only recent poll in Nebraska was performed by the New York Times/CBS. They sampled 721 likely voters. The margin of error is ±3.9 percentage points. Results were:
- 46% were opposed to marriage equality.
- 40% favored marriage equality
- 14% had no opinion or refused to answer. 5
2015-MAR-02: Two lawsuits had been filed in U.S. District Court. The second one found same-sex marriages in Nebraska to be legal:
A decade previously, a group of LGBT equality groups launched lawsuit Citizens for Equal Protection v. Bruning. At the time, Massachusetts was the only state in which same-sex couples could marry.
Judge Joseph F. Bataillon of the United States District Court for the District of Nebraska ruled that the measure violated the United States Constitution's guarantees of equal protection and free speech, as well as its prohibition on bills of attainder. In 2006, the United States Court of Appeals for the Eighth Circuit overturned Judge Bataillon's decision, and ruled that:
"... laws limiting the state-recognized institution of marriage to heterosexual couples ... do not violate the Constitution of the United States." 2
A "bill of attainder" is a law passed by a legislature that declares a person or group guilty of some crime and punishing them without holding a judicial trial. Such laws are prohibited by the U.S. Constitution. In this case, a person would be punished by prohibiting them from marrying without having held a trial that found them guilty of something.
As of 2015-FEB, a group of three adjoining midwestern states in a north-south column still banned same-sex marriage. They were North Dakota, South Dakota, and Nebraska. These states are under the jurisdiction of the federal 8th Circuit Court of Appeals. That court also has jurisdiction over four additional states to the East:
- Minnesota and Iowa where same-sex marriages were already made legal,
- Missouri where same-sex licenses are currently available, but only in the city of St. Louis, the county of St. Louis, and Jackson County, and
- Arkansas where same-sex marriages were unavailable.
Six states have a common border with Nebraska. All allow same-sex couples to marry, with the exception of South Dakota.
During 2015-NOV, a lawsuit was filed by seven same-sex couples in the U.S. District Court for the District of Nebraska. 6 It is referred to as Waters v. Ricketts. It named Governor Pete Ricketts (R), and Attorney General Doug Peterson (R), as the main defendants. The American Civil Liberties Union (ACLU) represented the plaintiffs. The ACLU argued the case on the usual basis that although individual states have the right to define who is eligible to be married within their borders, their definition must not conflict with the federal Constitution. Dozens of state and federal courts since the Windsor v. United States decision by the U.S. Supreme Court in mid-2013 have, almost without exception, ruled that a ban on marriage by same-sex couples by a state violates the Due Process and/or Equal Protection clauses of the 14th Amendment of the U.S. Constitution.
On Monday, MAR-02, Senior U.S. District Judge Joseph Batallion issued a ruling making Nebraska the th state to attain marriage equality. 6,7
He ruled that the year 2000 amendment to the state constitution violates the U.S. Constitution and is thus void and unenforceable. It had banned not only same-sex marriages, but also civil unions, and domestic partnerships in the state.
His 34-page ruling said, in part:
"All of the plaintiffs have further demonstrated psychological harm and stigma, on themselves and on their children, as a result of the non-recognition of their marriages. The plaintiffs have been denied the dignity and respect that comes with the rights and responsibilities of marriage. ... The notion that some children should receive fewer legal protections than others based on the circumstances of their birth is not only irrational — it is constitutionally repugnant."
He wrote that the same-sex marriage ban is:
"... an unabashedly gender-specific infringement of the equal rights of its citizens."
He issued an injunction that stated, simply and unambiguously, that:
"... all relevant state officials are ordered to treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage." 6
Judge Batallion specified that the injunction would come into effect on MAR-09, at 8 AM local time. That gave the state one week to modify their marriage license application form to accommodate the marriage of two women or two men. It also gave the state a week in which to appeal the District Court's decision to the 8th U.S. Circuit Court of Appeals and perhaps to obtain a stay from that court before Nebraska's same-sex couples attempt to apply for marriage licenses.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Adam Talbot, "Nebraska Marriage Ban Struck Down by Federal District Court," Human Rights Campaign, 2015-MAR-02, at: http://www.hrc.org/
- "Nebraska Initiative 416," Wikipedia, as on 2014-JUL-21, at: http://en.wikipedia.org/"
- "Nebraska Senators Are Unanimously for Marriage Equality, But Only If You…," Human Rights Campaign, 2015-FEB-04, at: http://www.hrc.org/
- Liz Holloran, "Nebraska Suspends Discriminatory Policy That Barred Same-Sex Couples from Becoming Foster Parents," Human Rights Campaign, 2015-MAR-02, at: http://www.hrc.org/
- "LGBT rights in Nebraska," Wikipedia, as on 2015-MAR-03, at: http://en.wikipedia.org/
- Carson Vaughan, "U.S. judge rules Nebraska same-sex marriage ban unconstitutional," Reuters, 2015-MAR-02, at: http://www.reuters.com/
- Some media and Internet sources say that Nebraska is the 38th state. The discrepancy is caused by the state of Missouri where same-sex couples can obtain marriage licence's but only in the city of St. Louis or in two counties.
Originally posted: 2015-MAR-03
Last updated 2015-MAR-05
Author: B.A. Robinson