A federal judge has refused to dismiss a lawsuit challenging Nebraska's one-of-a-kind ban on same-sex marriages. U.S. district judge Joseph Bataillon on Monday refused a request by the state of Nebraska to dismiss the lawsuit, which was filed in April by the American Civil Liberties Union and other groups. The lawsuit says the ban, which was approved by voters in 2000 and added to the Nebraska constitution the following year, violates the rights of gay and lesbian couples. Thirty-seven states have "Defense of Marriage" laws, but Nebraska's ban is the only one that specifically prohibits same-sex couples from enjoying many of the legal protections that straight couples enjoy.
The constitutional amendment, known as Initiative 416, passed with 70% of the vote. It prevents gay men and lesbians who work for the state or the University of Nebraska system from sharing health insurance and other benefits with their partners. Lawyers for the state said the ACLU and the other groups did not have standing to challenge the lawsuit, since they could not show they were
injured by it. But Bataillon said the law would prevent such advocacy groups and gay and lesbian couples from lobbying to get the same benefits as other people. The law "acts as a barrier to plaintiffs' participation in the political process, and thus as a result plaintiffs have established injury," he said. ACLU lawyer Amy Miller hailed the decision, saying the ban "prohibits same-sex families from lobbying for even the most basic protections for their families through the normal democratic process." Bataillon also quoted Alexander Hamilton, who wrote about the dangers of passing legislation aimed at punishing a group of people: "The dangerous consequences of this power are manifest. If the legislature can disenfranchise any number of citizens at pleasure by general descriptions, it may soon confine all the votes to a small number of partisans and establish an aristocracy or oligarchy."
The ACLU was joined in the lawsuit by Citizens for Equal Protection and Nebraska Advocates for Justice and Equality. The ACLU's Lesbian and Gay Rights Project and the New York-based Lambda Legal Defense and Education Fund are underwriting the lawsuit. Lambda attorney David Buckel called the law "the most extreme anti-gay family law in the entire nation." The ban prevents same-sex couples from "securing protection against a wide array of injuries that domestic-partnership laws and policies are designed to address, including being prevented from visiting a same-sex partner in the hospital, making care decisions when a same-sex partner is incapacitated, taking bereavement leave when a same-sex partner dies, or making funeral arrangements for a same-sex partner after death," the lawsuit says.
The ban was spearheaded by the Nebraska Coalition for the Protection of Marriage, which was cochaired by former Republican governor Kay Orr. The coalition includes the Mormon Church, the Nebraska Catholic Conference, and Family First. The ban also was supported by the Nebraska Family Council, a nonpartisan group that promotes "biblical values in Nebraska families, school, and government." The ACLU stressed that the lawsuit does not ask for recognition of same-sex marriages, civil unions, or domestic partnerships. Instead, it seeks "nothing more--and nothing less--than a level playing field."