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Prohibiting same-sex marriages (SSMs) in the U.S.

The Nebraska Defense of
Marriage Amendment (DOMA)

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Background:

During the 1990s, legal efforts were taken to legalize same-sex marriage in Hawaii, VermontAlaska, 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:

bulletStrip protections from opposite-sex couples who are in a common-law relationship.
bulletDeny 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 caused:

"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 introduction and
passage of legislation. I conclude that Section 29 acts as a barrier to plaintiffs' participation
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

That 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 unconstitutional.

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." 2

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'."

He concluded:

"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."

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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:

bulletDavid 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 process."

bulletAmy 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 those protections."

bulletShelley Kiel of Nebraska Advocates for Justice and Equality wrote:

"It 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 provide them."


bulletState 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 union:

bulletAccording 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."

bulletMat Staver, president of Liberty Counsel, said that the decision has "monumental implications" for marriage. He said:

"This 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."

bulletJames C. Dobson, founder and head of Focus on the Family said:

"Federal 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 Court.

Nebraska Family Council, a conservative Christian group opposed to marriage equality concluded:

"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 change." 8

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.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "50-state survey of marriage protection amendments," Traditional Values Coalition, 2005-APR, at: http://www.traditionalvalues.org/  **
  2. 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 al, , 2003-NOV-10 is at: http://www.lambdalegal.org/
  3. Al Riskowski, "DOMA challenged by ACLU: Morality and marriage challenged," Nebraska Family Council, at: http://www.nebraskafamilycouncil.org/
  4. A unicameral is a legislative assembly consisting of a single body.
  5. "Federal Court Strikes Down Nebraska?s Anti-Gay-Union Law Banning Protections for Same-Sex Couples," Lambda Legal, 2005-MAY-12, at: http://www.lambdalegal.org/
  6. Kevin O'Hanlon, "U.S. Judge Rejects Neb. Gay-Marriage Ban," Associated Press, 2005-MAY-13, at: http://www.newsday.com/
  7. Pete Winn, "Judge Strikes Down Nebraska DOMA," Focus on the Family, 2005-MAY12, at: http://www.family.org/cforum/
  8. "Homosexual rulings: Morality and marriage challenged," Nebraska Family Council, undated, at: http://www.nebfc.org/

** This is a PDF file. You may require software to read it. Software can be obtained free from: 

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Copyright © 2005 to 2009 by Ontario Consultants on Religious Tolerance
Originally written: 2005-MAY-14
Latest update: 2009-JUN-17
Author: B.A. Robinson

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