The U.S. Supreme Court took the odd and alarming step last week of quickly denying all seven petitions it had to review appellate-court rulings that had struck down state prohibitions on recognition and/or re-definition of marriage as other than a man and a woman.
The denials directly impact policies of not allowing or recognizing same-sex marriages in Virginia, Indiana, Wisconsin, Oklahoma and Utah. Those states are in the Fourth (Virginia), Seventh (Indiana, Wisconsin) and Tenth (Oklahoma, Utah) federal court circuits. Since these are circuit-court rulings that are being allowed to stand, most likely same-sex marriage will soon become constitutionally required in the otherwise prohibiting states also located in these circuits; that would be North Carolina, South Carolina and West Virginia in the Fourth Circuit and Colorado, Kansas and Wyoming in the Tenth Circuit.
Adding the 11 aforementioned states to the list of those that already allow for same-sex marriage raises the total to 30. What’s more, a day after the Supreme Court’s announcement, a panel of Ninth-Circuit judges ruled in favor of same-sex marriage in cases that had originated in Idaho and Nevada. Those rulings aren’t final, but are likely to also affect Alaska, Arizona and Montana, which could push the total to 35 (plus the District of Columbia).
Nebraska, which is in the relatively quiet Eighth Circuit, is not one of those. Nonetheless, it’s a good time to review the situation here, both historically and policy-wise.
In 1997, the Unicameral considered LB 280, which proposed creation of a state statute to clearly define marriage as the union exclusively of one man and one woman—that traditional definition had been presumed as a matter of law by virtue of statutory inferences and implications—and to prohibit any governmental recognition of any other definition of marriage.
LB 280 was filibustered by Senator Ernie Chambers. Even though the bill had 33 co-sponsors, when a first-round vote to invoke cloture was taken—right before a lunch break—it fell one vote short. That ended consideration of LB 280. A similar bill was introduced in 1999, LB 513, but the threat of another filibuster was enough to keep it bottled up in committee.
The Legislature’s failure to act, as well as rapidly growing concern about what was happening in other states both judicially and legislatively, motivated a coalition of Nebraskans to take this serious policy issue directly to the people. Spearheaded by the Nebraska Family Council, with significant participation by Evangelical churches and individual Mormons and Catholics, Nebraskans for Marriage quickly formed and launched a citizens’ initiative petition.
The amendment proposed for the Nebraska Constitution was formulated as follows: “Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same-sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.” It was considered a strong formulation: the first sentence reaffirming what marriage is; the second sentence establishing what it is not, including any equivalent of or substitute for marriage using another title.
Between May 24 and July 7 of 2000, volunteers collected more than 155,000 signatures of Nebraska-registered voters, comfortably exceeding the threshold to qualify the proposed constitutional amendment for the General Election. It was certified as Initiative Measure 416.
A spirited campaign took place that fall. In addition to the organizations and individuals involved in the petition drive, the Nebraska affiliate of Focus on the Family, the LDS Church (Mormon) and the Catholic Diocesan Bishops formed the Nebraska Coalition for the Protection of Marriage, which advocated for IM-416. There also was organized, formidable, vigorous opposition; and a lot of media coverage.
The final tally from the General Election Nov. 7, 2000, was 477,571 votes in favor of IM 416 and 203,667 votes against—a margin of 70 percent to 30 percent. IM-416 became Article I, Section 29 of the Nebraska Constitution.
In 2003, a federal lawsuit, Citizens for Equal Protection v. Bruning, was filed against I-29, alleging that it violated the U.S. Constitution on several grounds, including denying equal protection. On May 13, 2004, with a poorly reasoned, sloppily written opinion of nearly 40 pages, a judge of the federal district court in Omaha struck down I-29.
Attorney General Bruning appealed that ruling to the U.S. Court of Appeals for the Eighth Circuit. On July 14, 2006, a three-judge panel of the Eighth Circuit unanimously reversed the district-court judge’s ruling and reinstated I-29 in full. No further appeals were undertaken.
The constitutional amendment stands today as Nebraska law prohibiting any state or local government recognition of same-sex marriage or marriage-equivalent same-sex relationships.
In the current aftermath of all this history, it is at least arguable that some tax-supported governmental entities in the state, most notably the Board of Regents of the University of Nebraska, but also including at least two counties and probably some school districts as well, are thumbing their noses at I-29 and Nebraska law by means of their employment-benefits policies. More on that sticky wicket another time.
