Court restores
Nebraska's sweeping same-sex marriage ban

Supporters of banning gay marriage won two major court rulings Friday, with a federal appeals court reinstating Nebraska's voter-approved ban on same-sex marriage and the Tennessee supreme court ruling that voters should have a say on the issue. Last week the highest courts in two others states also dealt gay rights advocates setbacks. The New York court rejected a bid by same-sex couples to win marriage rights, and the Georgia court reinstated a constitutional amendment banning gay marriage there.

The Eighth U.S. Circuit Court of Appeals on Friday overturned an earlier ruling by U.S. district judge Joseph Bataillon, who said last year that the Nebraska measure was too broad and deprived gays and lesbians of participation in the political process, among other things. Nebraska voters approved the amendment by 70% in 2000.

The court said the amendment "and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States." Attorney general Jon Bruning said the ruling "affirmed Nebraskans' right to modify their constitution as they see fit."

Bruning had argued before the court 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."

The lawsuit challenging the ban was filed by New York-based Lambda Legal and the American Civil Liberties Union's gay rights project. David Buckel, senior staff attorney at Lambda Legal, said Nebraska's ban is "the most extreme of all the antigay family laws in the nation" and that the group is considering asking the appeals court to rehear the case. He said the court ignored the claims raised in the lawsuit. "We did not sue about marriage. We sued because our clients were told it was a waste of time to try to get a domestic-partnership bill passed" in the legislature," he said. "Yet the court is reasoning as if what we asked for was the right to marry."

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 banned 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 foster parents, adopted children, and people in a host of other living arrangements. He said the ban amounted to punishment by going beyond merely defining marriage as being between 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."

Writing for the appeals court, chief judge James Loken said, "The political harm to appellees' members is not punishment in the functional sense because it serves the nonpunitive purpose of steering heterosexual procreation into marriage, a purpose that negates any suspicion that the supporters...were motivated solely by a desire to punish disadvantaged groups." "While voting rights and apportionment cases establish the fundamental right to access the political process, it is not an absolute right," Loken said. "In a multitiered democracy, it is inevitable that interest groups will strive to make it more difficult for competing interest groups to achieve contrary legislative objectives." (Kevin O'Hanlon, AP)