Federal Judge Deems Nebraska’s Gay Marriage Ban Unconstitutional

Voters in Nebraska adopted a resolution in November 2000 to define marriage as a union between a man and a woman, and more. The one-of-a-kind ban, which was passed with an overwhelming 70% of the vote by Nebraska’s citizens, prevents homosexuals working for the state or the University of Nebraska from sharing health insurance and other benefits with their partners. But once again, a federal judge has taken an activist approach to an issue rather than representing the people who elected him. Despite the crystal clear wishes of the people of the state, U.S. District Judge Joseph Bataillon said in a 42-page ruling that the ban violates the rights of Nebraskans in certain living arrangements. Bataillon said the ban "imposes significant burdens on both the expressive and intimate associational rights" of homosexuals "and creates a significant barrier to the plaintiffs' right to petition or to participate in the political process." Saying that the ban "goes far beyond merely defining marriage as between a man and a woman," Bataillon added that the broad proscriptions of the ban "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."

The challenge to the change to the state constitution was in a lawsuit filed by the ACLU’s Lesbian and Gay Project and the gay rights organization Lambda Legal. Lamba Legal’s attorney, David Buckel, has called the ban "the most extreme anti-gay family law in the entire nation." A member of the Metropolitan Community Church in Omaha, which advocates for gay rights, applauded the judge’s ruling by saying, "Every step is a good step. It really will get the ball rolling again." Bataillon’s intervention did not surprise Al Riskowski, the executive director of the Nebraska Family Council, the organization that led the successful drive to get the ban on the ballot in 2000. Riskowski said the judge’s decision will only renew the call to enact a constitutional amendment in Nebraska defining marriage as only between a man and a woman. The state initially asked the judge to dismiss the suit, saying the ACLU and the other groups don’t have standing to challenge the law because they could not show they were harmed by it. But Bataillon disagreed, ruling that the law would prevent advocacy groups and gay couples from lobbying for benefits.

Nebraska currently has no official state law prohibiting gay marriage, but Nebraska’s Attorney General, Jon Bruning, said same-sex marriages were not allowed before the ban, and would not be permitted now. In responding to the judge’s ruling, Bruning said he will appeal. "I intend to pursue this case vigorously," Bruning said in a news release. "We will appeal. 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."

Although Massachusetts began allowing gay marriage a year ago, Vermont has offered civil unions to gays since 2000, and Connecticut will begin offering civil unions in October, there are 40 states that have taken a proactive approach to the issue by enacting Defense of Marriage laws.