CHALLENGING AMENDMENT 416 -- THOU SHALT HAVE NO OTHER SPOUSE BUT THE OPPOSITE GENDER
(If you read The Political State Reporter
the first part of this will look a bit familiar. Okay, call me lazy. Commentary is at the end.)
A coalition of five gay couples, the ACLU - Nebraska, the national ACLU, the Lambda Defense League, Nebraska Citizens for Equal Protection, and Nebraska Advocates for Justice have filed a federal lawsuit challenging Nebraska's constitutional amendment prohibiting same sex marriages, civil unions, and other relationships resembling marriages. LINK
Nebraska's amendment is widely regarded as the most stringent of the 34 states which have legislation or constitutional amendments regarding "traditional" marriage. It reads:
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.
Prior to the amendment's passage, opponents argued that the amendment could prohibit such wide ranging relationships as contracts between business partners of the same gender; that it would invalidate health care powers of attorney which name a same gender partner; and that it would run afoul of the "full faith and credence" provision of the U.S. Constitution. These issues have not been tested in court yet.
Nevertheless, the concern among same gender partners in Nebraska is that they are treated differently from other Nebraskans:
Gay couple Dave Gilsdorf and Robb Crouch of Lincoln said in an interview after the news conference they want some of the same protections heterosexual couples enjoy. Gilsdorf, 35, and Crouch, 32, have been partners for six years and describe the relationship as lifelong.
The couple recently had an attorney draw up papers giving each the medical power of attorney over the other.
But, they said, there is no guarantee a hospital would respect the papers if one of them should fall ill.
"It's a real inconvenience to have to carry these (papers) around," Crouch said. "How a hospital would react to them, we can't say."
Nebraska passed an "equal protection of the law" amendment ("No person shall be deprived of life, liberty, or property, without due process of law, nor be denied equal protection of the laws
." [emphasis mine]) to its Constitution the year prior to passing the so-called "Protection of Marriage" amendment. It is largely on this amendment that it appears this challenge will be based.
This has been brewing since the amendment was passed in 2000. At the time of the campaign to pass the amendment, there was a lot of rumbling that nobody did much to prevent the bill from passing. The ACLU, Lambda, and CFEP all ran some commercials in Omaha and Lincoln opposing the bill but apart from that and some meetings in friendly venues, not much was
done. It was as if the GLBT and GLBT-friendly community laid back and took it.
In retrospect, I am not sure that any amount of money would have helped. The fact of the matter is that this state is pretty anti-gay. Well, not anti-gay, just pro-traditional. Well, not pro-traditional, just immobile. Well, not immobile, just incapable of understanding anything new for about twenty years. The anti-gay coalition ran ads claiming that if we don't pass this amendment our children would grow up confused about marriage. Besides, this amendment wasn't anti-gay, it was just to protect marriage. Its proponents, including my nemesis and friend Bob Valentine (this is one area where we still vocally part company) claim that they have nothing against gays personally, they just want to preserve marriage as the exclusive province of a man and a woman.
We've heard all this before. Let's get to the current arguments. They're pretty slick.
Nebraska has an equal protection amendment. As I said above, it says that no person shall be denied the equal protection of the laws. Amy Miller of the ACLU Nebraska says that this is the linchpin of their argument: due to the breadth of the amendment, it denies the GLBT equal protection of the laws. (The federal complaint can be read at the national ACLU's home page
) As an attachment, they've included an opinion by Nebraska's Attorney General that legislation under consideration to broaden permissions for visitation between same gender partners in hospitals would be unconstitutional under this amendment. This clearly goes further than the "marriage" issue.
Amendment 416 was a bad idea from the start. The anti-gay forces knew their battleground: Nebraska is a very conservative state when it comes to "family values" and their ad campaign worked well. The slipped in an amendment that was much larger than the voters realized.
(As a side note, Nebraska voters are infamous for not realizing or thinking about what they're voting for. For example, there is an amendment in the Nebraska constitution that prohibits the teaching of school in any language except English. It was ruled unconstitutional in the early 1920s. The peepul voted down housekeeping amendments to throw this unconstitutional amendment out twice in the last two years).
If Amendment 416 is ruled unconstitutional, you can bet there will be an attempt to pass a similar law within three months after its defeat. But it all may be academic. Remember that at least two other states are considering passage of full-fledged same gender marriage. Once that happens, you can bet there will be "full faith and credence" challenges that will go up to the U.S. Supreme Court. If they stand under "full faith and credence," Nebraska can ban anything it wants. It won't mean a damned thing.
Oh, one other point. The link to the story above is to the Lincoln Journal Star
. The Omaha World Herald
named each plaintiff by name and career. Now I know that the plaintiffs are aware of what awaits them: harassment, death threats, vandalism, taunts, and perhaps even assault. Maybe the occasional "you go, girl!" They were not afraid to have their names listed in the federal complaint. But does it seem to anyone else that the Wortld Herald
just put up a sign saying, "Here they are, go get them, rednecks!"