Feb. 14, 2006 – Challenging what many in the gay community see as an onerous prohibition on their relationships, lawyers with two gay-rights organizations asked a federal appeals court yesterday to uphold a lower-court ruling that Nebraskaâ€™s five-year-old ban on gay marriage is unconstitutional.
The lawyers argued that the amendment to the state constitution presents an "extraordinary burden" to same-sex couples. But the Nebraska Attorney Generalâ€™s office has a starkly different take on the issue, seeking to have the law restored after a district court struck it down last May.
The amendment, which was overwhelmingly approved by voters in November 2000, prevents the recognition of same-sex couples under any legal framework, including civil liberties and domestic partnerships. Nebraska already had laws on the books preventing the state from legally recognizing gay marriages.
Calling the ban "the most extreme anti-gay family law in the nation," David Buckel, a lawyer with the gay-rights group Lambda Legal Defense said in a statement on Monday that the amendment "in effect put a sign on the door of the Nebraska legislature saying â€˜Same-Sex Couples Not Allowedâ€™."
Lawyers with Lambda and the American Civil Liberties Union noted in court papers that the law is the first in the nation to specifically bar any legal recognition of same-sex relationships by a state government. The advocates argue that the law effectively blocks couples from establishing spousal rights and responsibilities, like end-of-life decision-making authority. They also contend that the broad scope of the ban by extension limits the right of same-sex couples to lobby for any form of legal recognition, hindering their ability to petition the government for the same rights as heterosexuals
Buckel noted that a 2003 opinion issued by the Nebraska Attorney Generalâ€™s office already pressured state lawmakers to back down from legislation granting gay males decision-making rights when burying their partners.
Lambda and the ACLU originally filed a legal challenge to the amendment in 2003 on behalf of Citizens for Equal Protection and Advocates for Justice and Equality, two statewide queer-rights groups.
Last May, District Court Judge Joseph Bataillion agreed with the plaintiffsâ€™ reasoning and repealed the amendment, saying that it could prevent queer couples from petitioning lawmakers for access to the political process and improperly kept them from enjoying many of the same privileges afforded heterosexual pairings. The state immediately filed an appeal on the grounds that the federal court had overruled the will of state voters.
In arguments yesterday, Deputy Attorney General Matt McNair said no state residents have experienced political discrimination due to the constitutional amendment and that Nebraskan gays have as many options for redress and access to the political system as any other state resident. He accused gay-rights groups of seeking special protections "based on recognizing a relationship."
ACLU counsel Tamara Lange countered that the ban "restructures the system and closes the doors of government to gay people."
The three-judge appeals-court panel has not indicated when it will rule on the case.