Same-sex marriage in Nebraska

Same-sex marriage has been legally recognised in the U.S. state of Nebraska since June 26, 2015, when the U.S. Supreme Court decision in Obergefell v. Hodges ruled the denial of marriage rights to same-sex couples unconstitutional. Following the court's ruling, the Attorney-General of Nebraska announced the state would comply with the ruling.^[1]

History

In November 2000, Nebraska voters adopted Initiative Measure 416 that defined marriage as the union of a man and a woman and prohibited the recognition of same-sex relationships under any other name.^[2] The measure passed with 70.10% in favour and 29.90% opposed.^[3] Nebraska has only restricted marriage rights for same-sex couples in its state constitution, it has never passed a measure to that effect in the form of a statute passed in the legislature.

Nebraska extended hospital visitation rights to same-sex couples through a designated visitor statute.^[4]

Repeal of the same-sex marriage ban

In January 2016, decision began on whether the now defunct same-sex marriage ban should be removed from the Constitution. Senator Burke Harr argued that Nebraska's Constitution should be consistent with the law of the land regarding same-sex marriage. Such a change to the Constitution would require a majority of voters in favor. Two religious organizations opposed the measure claiming it to be costly and that it would only create more divisiveness. Senator Patty Pansing Brooks later said, "Enough hurt. Enough harm. Enough damage has been done by the religious institutions."^[5][6]

Furthermore, Senator Matt Hansen introduced two bills to the Legislature. LB 943 which would make some references to marriage gender-neutral in state statute. LB 944 which would replace some mentions to "father and mother" with "parents".^[5][6]

Lawsuits

Citizens for Equal Protection v. Bruning

In 2003, two LGBT advocacy organizations, Citizens for Equal Protection and the Nebraska Advocates for Justice and Equality, joined by the American Civil Liberties Union and also represented by Lambda Legal, filed suit in the United States District Court for the District of Nebraska challenging the constitutionality of Initiative Measure 416. District Court Judge Joseph F. Bataillon ruled in favour of the same-sex couple plaintiffs on May 12, 2005, overturning Initiative Measure 416 based on the Equal Protection Clause, the First Amendment, and the prohibition on bills of attainder contained in the Contract Clause.^[7]

The state appealed the decision to the Eighth Circuit Court of Appeals and on July 14, 2006, in a unanimous opinion written by Chief Judge Loken, the Court reversed the District Court's decision on all three of its conclusions.^[8] The plaintiffs subsequent request for an Eighth Circuit rehearing en banc was denied and they elected to not file a petition for writ of certiorari in the U.S. Supreme Court.^[9][10]

Waters v. Ricketts

On November 17, 2014, the American Civil Liberties Union filed a lawsuit, originally Waters v. Heineman, in federal court on behalf of seven same-sex couples.^[11] The plaintiffs sought to overturn Nebraska's same-sex marriage ban and to have their out-of-state marriages recognized.^[12] The case became Waters v. Ricketts when Pete Ricketts succeeded Dave Heineman as Governor of Nebraska in January 2015. On January 21, 2015, the state asked for proceedings to be stayed pending action by the U.S. Supreme Court in same-sex marriage cases,^[13] and on January 23 Senior Judge Joseph F. Bataillon cancelled a hearing he had scheduled for January 29. On January 27, he denied the state's request to suspend proceedings.^[14] He held oral argument on February 19.^[15] On March 2, he ruled for the plaintiffs, setting March 9 as the effective date of his order.^[16]

Nebraska Attorney General Doug Peterson immediately announced the state would appeal the ruling and ask the Eighth Circuit Court of Appeals to stay Bataillon's order prohibiting enforcement of the state's same-sex marriage ban.^[17] He requested a stay pending appeal the next day,^[18] which the Eighth Circuit granted on March 6, while also scheduling oral argument for May 12 alongside three other same-sex marriage cases.^[19]

U.S. Supreme Court ruling

On June 26, 2015, following the decision of the U.S. Supreme Court in Obergefell v. Hodges, Nebraska Attorney General Peterson notified the Eighth Circuit Court of Appeals that the state would no longer enforce its ban on marriage of same-sex couples.^[20] Same-sex couples began immediately marrying in Nebraska following the Supreme Court's ruling, with Kathy Pettersen and Beverly Reicks the first same-sex couple to file marriage paperwork at the Douglas County Clerk's Office on June 26, 2015.^[21]

On July 1, 2015, the Eighth Circuit lifted the stay it had imposed on Bataillon's order, allowing his prohibition on the enforcement of Nebraska denial of marriage rights to same-sex couples to take effect.^[22] On February 6, 2016, Judge Bataillon issued a permanent injunction striking down the state's defunct same-sex marriage and civil unions ban. Though a formality, the injunction ordered state officials to treat same-sex couples the same as opposite-sex couples in everything from processing marriage certificates to issuing birth certificates, the latter something the state had previously attempted to ban same-sex couples from amending.^[23]

Issuing marriage licenses

Following the Supreme Court's ruling in Obergefell on June 26, 2015, most Nebraska counties began immediately issuing marriage licenses to same-sex couples, or announced their willingness to do so. Officials in Buffalo, Dakota and Phelps counties initially reported they would not be issuing such licenses until they received further guidance from the state. However, both the governor and the state's attorney general had announced by June 29, 2015, that the state would comply with the court's ruling and those counties promptly followed that guidance.^[24] Sioux County clerk Michelle Zimmerman was the only county clerk in Nebraska to expressly state she would not issue a marriage license to a same-sex couple, though the county's deputy clerk confirmed on July 11, 2015, that the office would process the marriage licenses of any same-sex couples who wished to marry in the county.^[25]

Public opinion

Public opinion for same-sex marriage in Nebraska

Poll source	Date(s) administered	Sample size	Margin of error	% support	% opposition	% no opinion
New York Times/CBS News/YouGov	September 20-October 1, 2014	721 likely voters	± 3.9%	40%	46%	14%
Public Policy Polling	September 30-October 2, 2011	739 voters	± 3.6%	36%	54%	10%
Greenberg Quinlan Rosner Research	August 2–4, 2011	305 adults	± 4%	42%	51%	12%

See also

• LGBT rights in Nebraska
• Nebraska Initiative 416

References

1. Doug Peterson (26 June 2015). "Office of Nebraska AG: Response to U.S. Supreme Court Ruling on Marriage".
2. David Orgon Coolidge, "Evangelicals and the Same-Sex 'Marriage' Debate," in Michael Cromartie, ed., A Public Faith: Evangelicals and Civic Engagement (Washington, DC: Ethics and Public Policy Center, 2003), 98-99, available online, accessed April 11, 2011
3. "2000 Nebraska Initiative General Election Results". U.S. Election Atlas.
4. "Nebraska: Marriage Equality facts". Marriage Equality USA.
5. Nohr, Emily (January 28, 2016). "Senator wants Nebraska Constitution to drop same-sex marriage ban; 2 religious groups oppose". Omaha World-Herald.
6. Pluhacek, Zach (January 27, 2016). "Religious groups want Nebraska's gay marriage ban kept on the books". Lincoln Journal Star.
7. Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (D.Neb. 2005)
8. Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (8th Cir. 2006)
9. Citizens for Equal Protection v. Bruning, Denial of Rehearing En Banc (8th Cir. 2006)
10. Pierceson, Jason (2014). Same-Sex Marriage in the United States: The Road to the Supreme Court and Beyond. Rowman & Littlefield Publishers. p. 213. Retrieved July 25, 2014.
11. Pluhacek, Zach (November 17, 2014). "7 couples sue over Nebraska's gay marriage ban". Lincoln Journal Star. Retrieved November 17, 2014.
12. "ACLU Files Lawsuit - Seeks Freedom to Marry for Nebraskans". ACLU Nebraska. Retrieved November 17, 2014.
13. "Motion to Stay Proceedings". Scribd.com. U.S. District Court for Nebraska. Retrieved January 21, 2015.
14. "Memo and Order denying state's request to stay proceedings". Scribd.com. U.S. District Court for Nebraska. Retrieved January 27, 2015.
15. Tysver, Robynn (February 19, 2015). "No decision today on Nebraska's gay marriage ban". Omaha World-Herald. Retrieved February 19, 2015.
16. Waters v. Ricketts (D. Neb. 2015)
17. Geidner, Chris (March 2, 2015). "Nebraska Same-Sex Marriage Ban Unconstitutional, Federal Judge Rules". BuzzFeed News. Retrieved March 2, 2015.
18. Johnson, Chris (March 2, 2015). "Court strikes down Nebraska's ban on same-sex marriage". Washington Blade. Retrieved March 3, 2015.
19. "Stay Granted". Scribd.com. Eighth Circuit Court of Appeals. Retrieved March 5, 2015.
20. "Motion on Mootness and to Vacate Preliminary Injunction". Equality Case Files. Eighth Circuit Court of Appeals. Retrieved June 26, 2015.
21. "Heartland Response To Gay Marriage Ruling Is Quick". WOWT NBC Omaha. June 26, 2015.
22. "Order Lifting Stay". Equality Case Files. Eighth Circuit Court of Appeals. Retrieved July 1, 2015.
23. "Judge's order strikes down Nebraska ban on gay marriage". Sioux City Journal. 6 February 2016.
24. "Local government responses to Obergefell v. Hodges (Nebraska)". Ballotpedia.
25. Robyn Tysver (11 July 2015). "Sioux County Clerk reverses course, will issue same-sex marriage licenses". Omaha.com.

External links

• Waters v. Ricketts (Judgement of the United States District Court for the District of Nebraska, March 2, 2015)