During the 1990s, legal efforts were taken to legalize same-sex marriage in Hawaii, Vermont, Alaska,
and other states.
As of 2005-MAY, same-sex couples were able to marry in the state of
Massachusetts, or enter into a civil union in
Vermont or Connecticut, or
enter into a domestic partnership in California. All
of these give same-sex couples most or all of the approximately 400 state's
rights, privileges and obligations of marriage. They are denied
over 1,100 Federal privileges that are automatically
enjoyed by every opposite-sex married couple in the U.S. Meanwhile, all loving,
committed couples in 7 out of 10 provinces and 1 out of 3 territories
in Canada were able to marry and receive all of the
provincial and federal rights of marriage.
Most states have passed DOMA laws to prevent same-sex marriages from being
recognized in their state. 1
Their constitutionality is in doubt. In 2005-MAY, the Nebraska DOMA amendment to
the state Bill of Rights was declared unconstitutional by U.S. District Judge
Joseph Bataillon. 2
The Nebraska amendment:
Many of the DOMA laws are publicly promoted as simply a means of preventing
same-sex couples from marrying or entering into civil unions. However, either
through gross carelessness or stealth, some are actually written with a far
greater scope. Some DOMA laws also:
Strip protections from opposite-sex couples who are in a common-law
Deny same-sex couples access to change to the political process. Some DOMA laws
prevent them from petitioning their state legislature for elementary rights,
like the freedom to visit their partner in hospital, to make critical
health-care decisions for their partner, to protect their children with health
insurance, etc. 3
Guyla Mills lead a petition drive called Initiative 416, the Defense of
Marriage Amendment. It was passed by a direct vote of the voters in Nebraska
in 2000-NOV. The vote was over 70% in favor. The amendment states:
"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 second sentence has proved controversial. It reduces every loving,
committed same-sex couple to a pair of roommates. i.e. under law, their
relationship does not exist. Also, their children are considered illegitimate.
After the approval of the Governor, the Nebraska DOMA initiative was added as
Article 1, Section 29 of the Nebraska Bill of Rights on 2000-DEC-07.
Prior to the addition of Section 29, the various sections of Bill of Rights
had guaranteed rights to the citizens of Nebraska. For the first time, the Bill of
Rights now identified a group of citizens and specifically denies them rights.
Lawsuit based on Equal Protection concerns:
Three groups: Citizens for Equal Protection, Nebraska Advocates for
Justice and Equality, and ACLU Nebraska launched a lawsuit in
2003-APR to have
the Section 29 declared unconstitutional. They claimed that:
"the second sentence of Section 29 should be declared unconstitutional
as it prohibits lesbian, gay, and bisexual persons from accessing the political
process to attempt to obtain legal protections, virtually barring legal
protection of any kind." 2
This is not a hypothetical prophecy. Al Riskowsi of the Nebraska Family
Council -- a group which opposes recognition of same-sex relationships -- wrote:
"The lawsuit states that initiative 416 violates the rights of
'lesbian, gay and bisexual people from using the ordinary political process
to seek important legal protections that all other Nebraskans already have.'
Within the past year there have been attempts to extend health benefits to
same sex couples at the University of Nebraska and pass a law on hate crime
legislation that inclucedes [sic] the term 'sexual orientation'. Obviously,
homosexual activists have been extremely involved in the political process.
In each of these instances I have appeared before regents and legislators to
remind them that the Nebraska State Constitution defines marriage as only
between one man and one woman...."
"The marriage laws are also intended to protect children. The
representatives of the lawsuit have expressed the desire for homosexuals to
adopt children. I agree that this initiative does stop homosexual adoption
in Nebraska and rightly so." 3
Motion to dismiss lawsuit denied:
In 2003-NOV, Judge Joseph Bataillon rejected a defendants' motion to dismiss.
He described in his ruling the loss of rights that Section 29 had already
"Plaintiffs argue that they are unable to, at the very least, seek
legislation to provide legal protections for those in same-sex
relationships. In support of their arguments, plaintiffs note that they
approached Senator Nancy Thompson and asked her to draft legislation
concerning domestic partnerships and, in particular, language that relates
to health, funeral, hospital and organ donations. Senator Thompson proposed
a bill on January 22, 2003, to allow both same-sex and different-sex couples
to make decisions regarding funeral arrangements and organ donations....
Senator Thompson submitted a request to Nebraska Attorney General Bruning
asking him to issue an opinion as to the constitutionality of such
legislation. On March 10, 2003, the Attorney General issued an opinion
determining that the proposed bill would violate Section 29."
"Plaintiffs also have a draft bill entitled 'Financial Responsibility
and Protection for Domestic Partners Act' which would allow same-sex couples
to formalize their responsibilities to each other and would allow private
companies to offer certain benefits to domestic partners.... However,
because of Section 29 and the recent opinion of the Attorney General,
plaintiffs will not have the opportunity to present this legislation to the
Unicameral. 4 They argue they are no longer permitted to lobby members of the
Unicameral regarding health care decisions, living expenses, funeral
arrangements, and hospital visitations. Section 29 is the only law of its
kind in the United States. According to the plaintiffs, over 150 local
governments offer same-sex health benefits; a number of states and
municipalities offer domestic partner registries; and over 5,000 companies
recognize samesex couples domestic partnerships.....In this lawsuit,
plaintiffs are seeking an equal opportunity to lobby their elected
representatives regarding legal protections for same-sex relationships. They
are not asking this court for any particular remedies relating to marriage,
civil unions, or domestic partnerships....."
"In the case at hand, Senator Thompson introduced Legislative Bill
671, but following
the opinion of the Attorney General, she took no further action. It is
obvious that Section 29
acts as a barrier to the ability of the plaintiffs to obtain support for the
passage of legislation. I conclude that Section 29 acts as a barrier to
in the political process....."
Colorado Amendment 2 -- a similar case:
A similar case, Romer v. Evans, was argued before
the U.S. Supreme Court in 1996. That involved
Amendment 2 to the Colorado state constitution which had earlier been submitted
to the voters and passed by a narrow margin (54% to 47%). According to the U.S.
Supreme Court decision, it would have prohibited:
"... all legislative,
executive, or judicial action at any level of state or local government designed
to protect the status of persons based on their 'homosexual, lesbian or bisexual
orientation, conduct, practices or relationships'." 2
is, Amendment 2 prevented the passage of any state law or municipal bylaw that
protected people from discrimination on the basis of their sexual orientation.
Some Colorado municipalities, civil libertarians, gays and lesbians initiated a
lawsuit -- "Romer v. Evans," -- to have the Amendment declared
The trial court and the Colorado Supreme Court
agreed that Amendment 2 infringed the fundamental right of gays and lesbians to
participate in the political process. They found that it had violated the
Equal Protection Clause of the Fourteenth Amendment to the U.S.
Constitution which guarantees that all citizens enjoy the same rights and
protections under law. The U.S.
Supreme Court agreed on 1996-MAY-20, and Amendment 2 was history. The
vote was 6 to 3, with Justices Scalia, Rehnquist and Thomas dissenting. The
court commented on the effect of the Amendment which identifies "...persons
by a single trait and then denies them protection across the board." This
leads to "disqualification of a class of persons from the right to seek
specific protections from the law." Justice Kennedy, writing for the
majority in this case, elegantly stated the essence of the ruling: "A State
cannot so deem a class of persons a stranger to its laws."
In 2003, Judge Joseph Bataillon quoted a number of sections from the U.S. Supreme
Court's "Romer v. Evans" decision, including:
"Laws 'declaring that in general it shall be more difficult for one
group of citizens than for all others to seek aid from the government is
itself a denial of equal protection of the laws in the most literal sense'."
"The court further stated that such a law will 'raise the inevitable
inference that the disadvantage imposed is born of animosity toward the
class of persons affected'."
"If the purpose, as offered by the defendants, of Section 29 is merely
to maintain the common law definition of marriage, there would be no need to
prohibit all forms of government protection or to preclude domestic
partnerships and civil unions. I conclude that the plaintiffs have met the
legal requirements for stating a claim of bill of attainder. THEREFORE, IT
IS ORDERED that defendants? motion to dismiss....is denied."
U.S. District Court decision:
In 2005-MAY-12, the Nebraska DOMA law was declared unconstitutional by U.S.
District Judge Joseph Bataillon the same grounds as Romer v. Evans: the
denial of equal protection under law. He wrote:
"The court finds Section 29 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'." 5
He noted that Section 29:
"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....[the ban] 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." 6
Responses to the court decision:
David Buckel, a senior attorney at Lambda Legal, one of the groups
representing the plaintiffs, wrote:
"This anti-gay-union law, in effect, hung
a sign on the door of the Unicameral saying 'Same-Sex Couples Not Allowed. It
makes no sense that Americans who believe in commitment and want to be more
responsible to each other and their children have to fight so hard just for the
right to try to persuade legislators that protections for family are important ?
successful or not, all citizens should have an equal shot in the democratic
Amy Miller of ACLU Nebraska wrote:
"The judge was clear that states can't enact amendments that bar gay
people from the democratic process. Committed same-sex couples need the same
protections for their families that married couples enjoy, and we're hopeful
that the legislature will take up this issue soon. 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 law makers for
Shelley Kiel of Nebraska Advocates for Justice and Equality wrote:
feels great to be a Nebraskan today, because it's looking like we'll be able to
get to work for families again. Families headed by same-sex couples in Nebraska
badly need basic protections and we'll set to work in the legislature to try and
State Attorney General Jon Bruning, a defendant in the case, disagreed. He said:
"Seventy percent of Nebraskans voted for the amendment to define marriage as a union
between one man and one woman, and I believe that the citizens of this state
have a right to structure their constitution as they see fit." 6
A number of social and religious conservatives appear to have a very
different interpretation of Judge Bataillon's ruling. They view his decision as
not being based on every citizen's right to petition the legislature for relief
of problems associated with their relationships. Rather, they seem to interpret
the ruling in terms of same-sex couples being allowed to marry or enter a civil
According to Focus on the Family, Dave Bydalek, Executive
Director pf Nebraska Family First the judge held that the DOMA law
violated the due process rights of homosexuals because it bars them from
seeking gay marriage or civil unions. He said:
"Beyond that, I think it's
another example of a federal judge substituting his judgment for the
overwhelming will of the people of Nebraska."
Mat Staver, president of Liberty Counsel, said that the decision
has "monumental implications" for marriage. He said:
decision is unbelievably broad. It says that a law that prohibits marriage
to same-sex couples is unconstitutional as a violation of free association,
equal rights, and even a bill of attainder?which means, he is saying, that
any law which preserves marriage as between one man and one woman is
actually a punishment against homosexuals because of their sexuality."
James C. Dobson, founder and head of Focus on the Family said:
protection of marriage is more necessary now than ever before. Those who
have argued that the definition of marriage is a states' rights issue have
nowhere to hide. Defense of marriage acts are not sufficient. Either
marriage will be enshrined in the U.S. Constitution, or we will see an
untenable patchwork of marriage definitions." 7
Appeal to the Circuit Court of Appeals:
The state appealed the case to the U.S. Court of Appeals for the 8th
Circuit. The three judge panel unanimously overturned the ruling by Federal
Judge Bataillon. During 2006-NOV, they found the constitutional amendment to be
constitutional. The ACLU decided to not appeal the case to the U.S. Supreme
Nebraska Family Council, a conservative Christian group opposed to marriage
"This is a win for marriage, families, the state of Nebraska and the nation.
Thank you for your prayers."
"If the definition of marriage is changed it will have the greatest effect on
our children. Marriage is for the benefit of children. It is not primarily about
tax benefits, sex, love or even rights, though it does include all of these. It
is primarily about creating a secure environment in which children learn values
and how to interact with both sexes. The ideal goal for marriage should remain
one man and one woman married for life. If the definition of marriage is changed
than what we teach children in school about family and marriage will radically
In their conclusions, they are obviously referring only to children and
spouses in families led by opposite-sex couples. Their comments and the court
ruling obviously discount the recognition, protection and security needs of
those families led by same-sex couples and ultimately cause the children to be
considered illegitimate by the state.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
The text of the rejection of the defendant's motion to dismiss in case
Citizens for Equal Protection, Inc., et al v. Attorney General Jon Bruning, et