Same-sex marriage in Nebraska has been legally recognized since June 26, 2015, when the U.S. Supreme Court ruled in the case of Obergefell v. Hodges that the denial of marriage rights to same-sex couples violates the Fourteenth Amendment. Following the court ruling, the Attorney General announced that the state of Nebraska would comply and recognize same-sex marriages.[1]

Legal history

In November 2000, Nebraska voters adopted Initiative Measure 416, a consitutional amendment defining marriage as the union of a man and a woman and prohibiting the recognition of same-sex relationships under any other name.[2] The measure passed with 70.10% in favour and 29.90% opposed.[3] The state 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 Nebraska 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 defunct same-sex marriage ban should be removed from the Constitution. Senator Burke Harr argued that the Constitution should be consistent with the law of the land regarding same-sex marriage. Such a change would require a majority of voters in favor. Two religious organizations opposed the measure, claiming it was "too 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] Senator Matt Hansen also introduced bills to make all references to marriage gender-neutral in state statutes, though the bills failed to pass.[5][6]

In January 2021, Senator Pansing Brooks presented a ballot measure to repeal the state's defunct same-sex marriage ban.[7] She argued that "putting the issue on the ballot would allow voters to show that public attitudes toward same-sex marriage have changed in Nebraska". The proposal was referred to the Judiciary Committee, which approved the measure on February 11 by a 5–2 vote, but it was not voted on before the State Legislature adjourned sine die on May 27, 2021.[8]

Lawsuits

Citizens for Equal Protection v. Bruning

Main article: 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 (ACLU) 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 Bataillon ruled in favour of the 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.[9]

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 James B. Loken, the Eighth Court reversed the district court's decision on all three of its conclusions.[10] The plaintiffs' subsequent request for an Eighth Circuit rehearing en banc was denied and they elected to not file a petition for certiorari in the U.S. Supreme Court.[11][12]

Waters v. Ricketts

On November 17, 2014, the ACLU filed a lawsuit, originally Waters v. Heineman, in federal court on behalf of seven same-sex couples.[13] The plaintiffs sought to overturn Nebraska's same-sex marriage ban and to have their out-of-state marriages recognized.[14] The case became Waters v. Ricketts when Pete Ricketts succeeded Dave Heineman as governor in January 2015. On January 21, 2015, the state asked for proceedings to be stayed pending action by the U.S. Supreme Court in related same-sex marriage cases,[15] and on January 23 Senior Judge Joseph Bataillon cancelled a hearing he had scheduled for January 29. On January 27, he denied the state's request to suspend proceedings.[16] He held oral argument on February 19.[17] On March 2, he ruled for the plaintiffs, setting March 9 as the effective date of his order.[18]

Attorney General Doug Peterson immediately announced the state would appeal the ruling and ask the Eighth Circuit Court of Appeals to stay Judge Bataillon's order prohibiting enforcement of the state's same-sex marriage ban.[19] He requested a stay pending appeal the next day,[20] which the Eighth Circuit granted on March 6, while also scheduling oral argument for May 12 alongside three other same-sex marriage cases.[21]

U.S. Supreme Court ruling

On June 26, 2015, following the decision of the U.S. Supreme Court in Obergefell v. Hodges, Attorney General Peterson notified the Eighth Circuit that the state would no longer enforce its ban on marriage of same-sex couples.[22] Same-sex couples began immediately marrying in Nebraska following the Supreme Court's ruling, with Kathy Pettersen and Beverly Reicks being the first same-sex couple to file marriage paperwork at the Douglas County Clerk's Office on June 26, 2015.[23]

On July 1, 2015, the Eighth Circuit lifted the stay it had imposed on Judge Bataillon's order, allowing his prohibition on the enforcement of Nebraska's denial of marriage rights to same-sex couples to take effect.[24] On February 6, 2016, Judge Bataillon issued a permanent injunction striking down the state's defunct same-sex marriage 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.[25]

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 Governor Ricketts and Attorney General Peterson had announced by June 29, 2015 that the state would comply with the court's ruling and those counties promptly followed that guidance.[26] 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.[27]

Kathy Pettersen and Beverly Reicks were the first same-sex couple to file marriage paperwork at the Douglas County Clerk's Office on June 26, 2015.[28] Barbara DiBernard and Judith Gibson were the first to wed in Lancaster County, which contains the capital city of Lincoln.[29]

Public opinion

Public opinion for same-sex marriage in Nebraska
Poll source Date(s)
administered
Sample
size
Margin of
error
% support % opposition % no opinion
Public Religion Research Institute April 5-December 23, 2017 519 ? 54% 33% 13%
American Values Atlas/Public Religion Research Institute May 18, 2016-January 10, 2017 747 ? 61% 27% 12%
American Values Atlas/Public Religion Research Institute April 29, 2015-January 7, 2016 587 ? 49% 43% 8%
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

References

  1. ^ Doug Peterson (26 June 2015). "Office of Nebraska AG: Response to U.S. Supreme Court Ruling on Marriage". Archived from the original on 30 June 2015.
  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. ^ a b Nohr, Emily (January 28, 2016). "Senator wants Nebraska Constitution to drop same-sex marriage ban; 2 religious groups oppose". Omaha World-Herald.
  6. ^ a b Pluhacek, Zach (January 27, 2016). "Religious groups want Nebraska's gay marriage ban kept on the books". Lincoln Journal Star.
  7. ^ "Proposal would end Nebraska's unenforceable gay marriage ban". Lincoln Journal Star. January 29, 2021.
  8. ^ >"Senators advance proposal to let Nebraskans decise on removing same-sex marriage ban". Kearney Hub. February 12, 202.
  9. ^ Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (D.Neb. 2005) Archived 2011-07-14 at the Wayback Machine
  10. ^ "Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (8th Cir. 2006)" (PDF). Archived from the original (PDF) on 2011-12-13. Retrieved 2015-07-11.
  11. ^ "Citizens for Equal Protection v. Bruning, Denial of Rehearing En Banc (8th Cir. 2006)" (PDF). Archived from the original (PDF) on 2010-12-30. Retrieved 2015-07-11.
  12. ^ 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.
  13. ^ Pluhacek, Zach (November 17, 2014). "7 couples sue over Nebraska's gay marriage ban". Lincoln Journal Star. Retrieved November 17, 2014.
  14. ^ "ACLU Files Lawsuit - Seeks Freedom to Marry for Nebraskans". ACLU Nebraska. Archived from the original on November 24, 2014. Retrieved November 17, 2014.
  15. ^ "Motion to Stay Proceedings". Scribd.com. U.S. District Court for Nebraska. Retrieved January 21, 2015.
  16. ^ "Memo and Order denying state's request to stay proceedings". Scribd.com. U.S. District Court for Nebraska. Retrieved January 27, 2015.
  17. ^ Tysver, Robynn (February 19, 2015). "No decision today on Nebraska's gay marriage ban". Omaha World-Herald. Retrieved February 19, 2015.
  18. ^ Waters v. Ricketts (D. Neb. 2015)
  19. ^ Geidner, Chris (March 2, 2015). "Nebraska Same-Sex Marriage Ban Unconstitutional, Federal Judge Rules". BuzzFeed News. Retrieved March 2, 2015.
  20. ^ Johnson, Chris (March 2, 2015). "Court strikes down Nebraska's ban on same-sex marriage". Washington Blade. Retrieved March 3, 2015.
  21. ^ "Stay Granted". Scribd.com. Eighth Circuit Court of Appeals. Retrieved March 5, 2015.
  22. ^ "Motion on Mootness and to Vacate Preliminary Injunction". Equality Case Files. Eighth Circuit Court of Appeals. Retrieved June 26, 2015.
  23. ^ "Heartland Response To Gay Marriage Ruling Is Quick". WOWT NBC Omaha. June 26, 2015.
  24. ^ "Order Lifting Stay". Equality Case Files. Eighth Circuit Court of Appeals. Retrieved July 1, 2015.
  25. ^ "Judge's order strikes down Nebraska ban on gay marriage". Sioux City Journal. 6 February 2016. Archived from the original on 8 February 2016.
  26. ^ "Local government responses to Obergefell v. Hodges (Nebraska)". Ballotpedia.
  27. ^ Robyn Tysver (11 July 2015). "Sioux County Clerk reverses course, will issue same-sex marriage licenses". Omaha.com.
  28. ^ "Heartland Response To Gay Marriage Ruling Is Quick". WOWT NBC Omaha. June 26, 2015.
  29. ^ Stoddard, Martha (June 28, 2020). "5 years after landmark ruling, gay marriage more accepted but still controversial in Nebraska". Omaha World-Herald. Retrieved July 23, 2020.