Nebraska Judge Strikes Down Ban on Gay Marriage

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A federal judge has struck down a ban on same-sex marriage in Nebraska. The amendment defined marriage as between a man and a woman. The judge said it stripped same-sex couples of the rights that married couples possess. Here's NPR's Barbara Bradley Hagerty.

BARBARA BRADLEY HAGERTY reporting:

It came as no surprise that US District Court Judge Joseph Bataillon struck down the amendment. He had practically promised he would in court rulings last year. Still, it was sweet success for Nancy Brink.

Ms. NANCY BRINK (Challenged State Constitutional Amendment): As we speak, I am e-mailing about 4,000 people.

HAGERTY: Brink and her partner, Maria Perez, were one of five couples to challenge the state constitutional amendment, which defined marriage as between a man and a woman. The judge's ruling does not mean that they can now marry. But it does mean that she can lobby the state Legislature for adoption rights, for example, or the right to visit her partner in the hospital.

Ms. BRINK: It means I get to go to Lincoln and ask for laws that would help protect my family without having them say, `Sorry, the Constitution says that's unconstitutional.' It's so small in that way, but it is so big in that this country really is for all people.

HAGERTY: Amy Miller, the legal director for the ACLU of Nebraska, says the amendment was worded broadly. It said Nebraska did not recognize any partnership that did not have a marriage certificate, and because of that, she says, legislators could not consider any bill that would involve those unions. That became apparent soon after the amendment was passed five years ago when a lesbian couple wrote the governor about a new adoption bill that would allow the non-biological parent to adopt their child.

Ms. AMY MILLER (ACLU): The governor wrote back and told them, `There's no point to us even meeting, because there is a state constitutional amendment in place that means that it is very unlikely that we would ever pass any laws that would protect your family.'

HAGERTY: Miller and the couples challenged the amendment, arguing that gays and lesbians were being treated unequally, and that violated the federal Constitution. They also argued that the amendment was like an unconstitutional bill of attainder, a law intending to punish a specific group of people.

Ms. MILLER: We argued that this state constitutional amendment clearly indicated a desire on the part of some people to punish gays and lesbians due to animus or irrational bias against those people. The judge agreed.

HAGERTY: In his decision, Judge Bataillon also wrote that the amendment could affect more than gay men and lesbians. Foster parents, roommates and people who share custody of children could also find themselves cut out of the political process. Now Miller and others say this decision is unlikely to have nationwide ramifications. Forty-three other states have laws or amendments defining marriage, but none of them is modeled after Nebraska's. Still, others say the judge overstepped his authority.

Mr. BYRON BABIONE (Alliance Defense Fund): The people are going to rightly see this as judicial activism, because that is certainly what it is.

HAGERTY: Byron Babione is a senior attorney for the Alliance Defense Fund, a conservative Christian public-interest law firm.

Mr. BABIONE: In Nebraska, over 70 percent of the population decided that the social policy regarding marriage would be to recognize marriage as it always has been, and that is between a man and a woman. This judge, though, has decided that he is invested with more power than the people in Nebraska and has essentially undone what the political process has produced.

HAGERTY: The state is appealing the case. Nationwide, Babione believes this ruling could backfire and galvanize people to press for a marriage amendment to the US Constitution. Barbara Bradley Hagerty, NPR News.

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