ACLU and Lambda Legal Urge Federal Court To Strike Down Nebraska Law Banning Recognition of Gay Couples

Affiliate: ACLU of Nebraska
October 15, 2004 12:00 am

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LINCOLN, NE – The American Civil Liberties Union and Lambda Legal filed their opening trial brief today in federal court urging the court to strike down a Nebraska constitutional amendment that bars the state and cities from ever granting any type of legal recognition for same-sex couples.

“Nebraska’s law treats loving, committed same-sex couples like strangers — and blocks them from even advocating for basic protections for their families,” said David Buckel, senior staff attorney at Lambda Legal. “This lawsuit isn’t seeking marriage for same-sex couples, it’s seeking a level playing field so that all Nebraskans are full and equal citizens, regardless of whether they’re gay or straight.”

The ACLU and Lambda Legal brought the challenge to the Nebraska law in April of 2003 on behalf of the Citizens for Equal Protection (CFEP), Nebraska Advocates for Justice and Equality (NAJE), and ACLU Nebraska, three advocacy organizations in Nebraska that are prevented from seeking equality for lesbian, gay and bisexual couples because of the law. The federal judge hearing the case issued a favorable decision last fall, allowing the challenge to go forward. The brief filed today asks the court to make a final ruling in the case that strikes down Section 29 as a violation of the U.S. Constitution’s guarantee of equal protection and ban on laws meant only to punish certain people.

“Nebraska’s Section 29 is an extreme and sweeping attack on gay families,” said Sharon McGowan, staff attorney for the ACLU’s Lesbian and Gay Rights Project. “It was designed to punish gay people and completely block them out of the political process. That’s something the U.S. Supreme Court has said, on more than one occasion, is unconstitutional.”

In the brief, the ACLU and Lambda Legal illustrate the types of harms same-sex couples face through the example of Doreen (D) Moritz, a lesbian who recently lost her 10-year life partner, Elsa Friendt, after a lengthy medical struggle. A state employee without access to any type of family leave protections, Moritz had to negotiate with her employer but was ultimately able to work out an alternative work schedule in order to take Friendt to medical appointments. Though the couple had executed explicit legal documents outlining their wishes, Moritz had to repeatedly establish her legal position with health care professionals in order to get information to best care for and support Friendt. When Friendt passed away, Moritz again had to negotiate with her employer over her schedule in order to grieve for her partner because she was denied bereavement leave.

At the time of her deepest grief, Moritz was challenged by a funeral home director who insisted that only Friendt’s biological family could make decisions about the burial, even though Moritz presented him with legal documentation signed by Friendt stating otherwise. The director relented only after Moritz was forced to engage an attorney.

In 2002, after a bill was introduced before the state legislature that would give same-sex couples the right to make burial arrangements for their partners, Attorney General Jon Bruning issued an opinion stating that it was unconstitutional because of Section 29, and the bill never reached a full vote.

“The proponents of Section 29 pulled a bait and switch on the citizens of Nebraska by claiming this law was about protecting marriage, when in reality it was about harming families,” said Michael Gordon, Executive Director of CFEP. “While a win in court won’t result in any protections for our relationships, at least we would be able to talk with our elected officials again about the types of harms we face and the protections we need for our families.”

Section 29 was passed in November 2000 in a heavily debated election that received the second highest turnout in the state’s history. The law defines marriages as only between a man and a woman and also specifically voids the uniting of two persons of the same sex in a “civil union, domestic partnership, or other similar same-sex relationship.”

“We’re not saying that Nebraskans shouldn’t have broad discretion in determining what types of laws to pass,” said Tim Butz, Executive Director of the ACLU Nebraska. “But that discretion crosses the line when the core principles of fairness and equality at the heart of our Constitution are ignored.”

The case is Citizens for Equal Protection, Inc., et al v. Governor Michael O. Johanns., et al, filed in the United States District Court for the District of Nebraska. To read the opening legal brief, go to: /node/35049 or

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