Judge strikes down state's same-sex marriage ban

2005-05-13T00:00:00Z Judge strikes down state's same-sex marriage ban Fremont Tribune
May 13, 2005 12:00 am

LINCOLN (AP) - A federal judge Thursday struck down Nebraska's ban on gay marriage, saying the measure 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.

The constitutional amendment, known as Initiative 416, was put on the ballot by petition in 2000. It passed with 70 percent of the vote.

While it 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.

In his ruling, U.S. District Judge Joseph Bataillon said the ban "imposes significant burdens on both the expressive and intimate associational rights" of gays and lesbians and "creates a significant barrier to the plaintiffs' right to petition or to participate in the

political process."

Bataillon said the ban amounted to punishment and is "legislation that identifies persons by a single trait and then denies them protection across the board, resulting in disqualification of a class of persons from the right to seek specific protections from the law."

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

Forty states have so-called "Defense of Marriage" laws.

The Nebraska Family Council led the petition drive to get the ban on the ballot.

Al Riskowski, executive director of the group, said the ruling did not surprise him. He said the decision will renew the call to pass a constitutional amendment defining marriage as only between a man and a woman.

Nebraska Attorney General Jon Bruning, who plans to appeal the ruling, said same-sex marriages were not allowed before the ban and would not be permitted now.

"I intend to pursue this case vigorously," he said. "Seventy percent of Nebraskans voted for the amendment to define marriage as a union between one man and one woman, and I believe that the citizens of this state have a right to structure their constitution as they see fit."

Republican polticians reacted angrily to the ruling. Nebraska Gov. Dave Heineman said he was "extremely frustrated" with the decision while Nebraska Republican Sen. Chuck Hagel decried it.

"I am hopeful the federal appeals court will recognize the rights of Nebraskans to determine their own laws governing marriage and reverse this decision," he said.

David Buckel, senior staff attorney at Lambda Legal, has called the ban "the most extreme anti-gay family law in the entire nation."

"It's great to see the folks in Nebraska will now have a level playing field on which to lobby their elected officials for family protections," Buckel said Thursday.

Bataillon said the ban went 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."

"This language … potentially prohibits or at least inhibits people, regardless of sexual preference, from entering into numerous relationships or living arrangements that could be interpreted as a same-sex relationship 'similar to' marriage," he said.

The judge said the amendment's "broad proscriptions could also interfere with or prevent arrangements between potential adoptive or foster parents and children, related persons living together, and people sharing custody of children as well as gay individuals and people inclined to align with them to promote changes in legislation."

Carla Petersen, a member of Metropolitan Community Church in Omaha, which advocates for gay rights, hailed the ruling.

"Every step is a good step," said Petersen, who said she is a lesbian. "It really will get the ball rolling again."

Joe Solmonese, president of the Human Rights Campaign, the nation's largest gay rights group, applauded the ruling but warned that "the same extremists who pushed this measure in the first place will continue their efforts.

"The truth is, if the ultra-conservatives who championed this amendment really wanted to protect families, they would work to strengthen schools, fight for health care and support all families equally," Solmonese said.

Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee who held hearings on gay marriage laws last year, said the ruling underscored the need for a federal ban on gay marriage.

"The traditional institution of marriage now is clearly in need of federal protection, now more than ever," Cornyn said. "This ruling is a vivid reminder that opponents of traditional marriage have not given up their effort to overturn the will of the people."

On the Net:

U.S. District Court of Nebraska: http://www.ned.uscourts.gov/

American Civil Liberties Union: http://www.aclu.org/

Lambda Legal Defense and Education Fund http://www.lambdalegal.org/

Opposition to rights for same-sex couples: http://www.family.org/

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