Appeals court
asked to uphold ruling striking down Nebraska marriage
amendment

Two advocacy groups asked a federal appeals court on Tuesday to uphold a ruling that invalidated an amendment to the Nebraska constitution banning same-sex marriage. Lambda Legal and the American Civil Liberties Union filed a brief with the eighth U.S. circuit court of appeals, asking that it uphold the ruling by U.S. district judge Joseph Bataillon.

"The Nebraska amendment that was struck down made gay people into political outcasts, making it impossible for same-sex couples even to lobby for basic domestic-partnership protections," said Tamara Lange, a lawyer with the ACLU's Lesbian and Gay Rights Project. "Our Constitution makes it very clear that all Americans are entitled to participate in our democracy. This law denied lesbian and gay Nebraskans an equal shot in the political process. That's not how our democracy works."

Bataillon ruled in May that the measure was too broad and deprived gays and lesbians of participation in the political process, among other things. Seventy percent of Nebraska voters approved the amendment in 2000.

In briefs submitted earlier, Nebraska attorney general Jon Bruning argued that the ban should be restored because it "does not violate any person's freedom of expression or association." Opponents of the ban "are free to gather, express themselves, lobby, and generally participate in the political process however they see fit," he said. "Plaintiffs are free to petition state senators to place a constitutional amendment on the ballot. Plaintiffs are similarly free to begin an initiative process to place a constitutional amendment on the ballot, just as supporters...did."

Bataillon's ruling did nothing to change the status of same-sex marriage in Nebraska. It was not allowed before the ban's adoption, and it remains against the law. David Buckel, senior staff attorney at Lambda Legal, calls the ban "the most extreme anti-gay family laws in the nation.... No state in this nation has a law that takes this much off the table only for gay couples who agree to take on the legal responsibility of a lifetime commitment."

Opponents of same-sex marriage have pointed to Bataillon's ruling as a reason to seek a national ban. While the amendment specifically banned same-sex marriage, it went further than similar bans in many states by prohibiting same-sex couples from enjoying many of the legal protections that heterosexual couples enjoy. Gays and lesbians who work for the state or the University of Nebraska system, for example, were barred from sharing health insurance and other benefits with their partners.

Bataillon said the amendment interferes not only with the rights of gay couples but also with those of foster parents, adopted children, and people in a host of other living arrangements. The judge said the ban amounted to punishment by going beyond merely defining marriage as the union of a man and a woman, noting that it also says the state will not recognize two people in a same-sex relationship "similar to marriage." The appeals court has not said when it will hear arguments in the case. (AP)