8th Circuit reinstates Neb. gay-marriage ban

Monday, July 17, 2006

LINCOLN, Neb. — A federal appeals court has reversed a ruling that struck down Nebraska’s same-sex marriage ban.

A three-judge panel of the 8th U.S. Circuit Court of Appeals on July 14 overturned an earlier ruling by U.S. District Judge Joseph Bataillon, who ruled last year 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.

The appeals panel 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 argued earlier 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 appeals panel agreed.

“We conclude that [the ban] does not violate the First Amendment because (i) it ‘does not “directly and substantially” interfere with appellees’ ability to associate’ in lawful pursuit of a common goal, and (ii) it seems ‘exceedingly unlikely’ it will prevent persons from continuing to associate,” Chief Judge James Loken wrote for the court in Citizens for Equal Protection v. Bruning.

Loken added, “The district court cited no case supporting its suggestion that the First Amendment right ‘to petition the Government for a redress of grievances’ is violated by an enactment that makes it more difficult for a group with full access to the political process to successfully advocate its views. The First Amendment guarantees the right to advocate; it does not guarantee political success.”

The lawsuit challenging the ban was filed by New York-based Lambda and the ACLU’s Lesbian and Gay Project.

David Buckel, senior staff attorney at Lambda Legal, said Nebraska’s ban is “the most extreme of all the anti-gay family laws in the nation” and that his group was 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 gay marriage have pointed to Bataillon’s ruling as a reason to seek a national ban.

While the amendment specifically banned gay 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 with 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 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, 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 of” the amendment “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 multi-tiered democracy, it is inevitable that interest groups will strive to make it more difficult for competing interest groups to achieve contrary legislative objectives.”

Earlier this month, New York’s highest court rejected same-sex couples’ bid to win marriage rights and Georgia’s high court reinstated that state’s constitutional amendment banning gay marriage.

Gay marriage opponents in Massachusetts got a boost on July 10 from the Supreme Judicial Court, which ruled that a proposed ban could go forward, provided it clear the remaining legislative hurdles.

The Tennessee Supreme Court also on July 14 cleared the way for voters to decide whether to amend the state constitution to ban gay marriage.

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