Federal Court Strikes Down Nebraska's Anti-Gay-Union Law Banning Protections for Same-Sex Couples

Affiliate: ACLU of Nebraska
May 12, 2005 12:00 am

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Decision does not mean gay couples can marry; Judge clarifies that ruling is limited to restoring democratic process by allowing plaintiffs to lobby for protections.

LINCOLN, NE — In a ruling issued today, a federal court struck down Nebraska’s anti-gay-union constitutional amendment that bans any and all forms of legal recognition for same-sex relationships, including domestic partnerships and other basic protections. The state is expected to appeal the case to the U.S. Court of Appeals for the 8th Circuit.

The Court noted in its ruling that the plaintiffs in the case had not requested any recognition of their relationships through marriage or any other legal status, but merely sought an equal opportunity to persuade legislators of the need for protections. Judge Joseph F. Bataillon went on to say, “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.'”

“This anti-gay-union law, in effect, hung a sign on the door of the Unicameral saying ‘Same-Sex Couples Not Allowed,'” said David Buckel, a senior attorney at Lambda Legal, one of the groups representing the plaintiffs. “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.”

The anti-gay-union law, Section 29 of the Nebraska constitution, was passed in November 2000 in a heavily debated election. Promoted to voters simply as protection of marriage, the law went far beyond restricting the right to marry to heterosexual couples. The law explicitly barred any legal recognition of a same-sex couple in a “civil union, domestic partnership, or other similar same-sex relationship.”

“The judge was clear that states can’t enact amendments that bar gay people from the democratic process,” said Amy Miller of ACLU Nebraska. “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.”

The ACLU and Lambda Legal filed the lawsuit in federal court in Lincoln in April 2003, saying that the state law violated the U.S. Constitution. The plaintiffs are Citizens for Equal Protection (CFEP), Nebraska Advocates for Justice and Equality (NAJE) and ACLU Nebraska, three advocacy organizations in Nebraska blocked from seeking family protections for same-sex couples and their children because of the anti-gay-union law.

“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,” said Shelley Kiel of NAJE.

Members of the plaintiff organizations include Doreen Moritz, who cared for her 10-year life partner until her death but had to request that an attorney rush to the funeral home to ensure respect of the legal documents giving Moritz authority to carry out her deceased loved one’s wishes. Judy Gibson and Barbara DiBernard of Lincoln, who have been in a committed relationship for over 14 years, are also participating in the lawsuit. Gibson has a severe degenerative disease that requires her to use a wheelchair, but because of Nebraska’s law, DiBernard, who works for the state university, cannot advocate for a policy authorizing her to take time off from work to take Gibson to her regular medical appointments.

Another couple who are members of the plaintiff organizations are Donna Colley and Margaux Towne-Colley of Omaha, who have been in a committed, loving relationship for over six years and are the proud parents of an 18-month-old son. With a child’s needs to consider, Colley and Towne-Colley are especially concerned about Section 29 because it blocks them from giving their family stability and structure through basic legal protections.

“It has been four long years waiting to be allowed to lobby our own senators — it’s great to see that democracy may be back in action in our great state,” said M.J. McBride, president of CFEP. “Although equality in marriage may be out of reach now, there’s a lot we can do to help families cope better with financial responsibilities, medical emergencies and the loss of loved ones.”

The attorneys who are bringing the challenge to the law include Robert Bartle of Bartle & Geier in Lincoln, Nebraska, Jon Davidson, David Buckel and Brian Chase of Lambda Legal, Tamara Lange, Sharon McGowan and James Esseks of the Lesbian & Gay Rights Project of the ACLU and Amy Miller of ACLU Nebraska.

The case is Citizens for Equal Protection, Inc., et al v. Attorney General Jon Bruning, et al, filed in the U.S. District Court for the District of Nebraska.

The legal complaint is available online at /node/35019 and http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=1253.

Today’s decision can be found online at /node/25242.

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