A first: Federal judge strikes down Neb. marriage amendment

Updated 5:12 p.m., May 13

LINCOLN, Neb. (BP)--In the first ruling of its kind, a federal judge May 12 struck down Nebraska's constitutional marriage amendment, issuing a decision that is certain to intensify calls for an amendment to the U.S. Constitution.

The amendment, which Nebraska voters passed by a margin of 70-30 percent in 2000, protects the traditional definition of marriage by banning "gay marriage," civil unions and domestic partnerships. The ruling does not legalize "gay marriage" but does make Nebraska significantly more vulnerable to such a lawsuit. For example, Massachusetts -- which legalized "gay marriage" last year following a court-order -- has no marriage amendment.

U.S. District Judge Joseph Bataillon ruled that the Nebraska amendment -- Section 29 in the state Constitution -- violates the U.S. Constitution's First Amendment right to petition the government and the Fourteenth Amendment's due process and equal protection clauses.

It is the first time a federal court has overturned a marriage amendment, which an additional 17 states have. The long-awaited ruling -- which pro-family leaders had feared would be a negative one -- is being appealed and could ultimately be decided by the Supreme Court.

"The court finds that Section 29 is directed at gay, lesbian, bisexual and transsexual people and is intended to prohibit their political ability to effectuate changes opposed by the majority," Bataillon, who was nominated by President Clinton, wrote.

The lawsuit was filed by homosexual and liberal activist groups, including Lambda Legal and the American Civil Liberties Union of Nebraska.

Pro-family groups said the ruling overturns the will of Nebraska's citizens.

"Same-sex couples and their supporters did participate in the political process, as did proponents of opposite-sex marriage," Byron Babione, an attorney with the religious liberty legal group Alliance Defense Fund, told Baptist Press. "The same-sex marriage proponents lost in the political process. That is a basic reality of getting to live in a democracy -- you get to participate in the political process, but you are not entitled to win a political battle.

"[The judge] is saying that same-sex marriage proponents, even when they lose in the political process on a vote on a constitutional marriage amendment, are guaranteed another bite at the apple."

The Nebraska amendment was adopted to prevent a state court from legalizing "gay marriage" or civil unions. It passed shortly after Vermont's high court mandated that the state legalize civil unions.

The Nebraska amendment was completely grassroots-driven and was placed on the ballot when more than 100,000 valid signatures were gathered. It states: "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."

Of the 17 other states with marriage amendments, 10 have language similar to Nebraska's, banning not only "gay marriage" but also civil unions and other marriage-like unions. Arkansas' amendment bans recognition of unions which are "identical or substantially similar to marital status." Ohio's amendment prohibits unions which "approximate the design, qualities, significance or effect of marriage."

Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission, said the ruling destroys the "myth" that "gay marriage" can be a states rights issue.

"The only remedy for this kind of imperial judiciary is a federal Marriage Protection Amendment," Land told BP. "Our forefathers, in their wisdom, gave us the means to further instruct the judges when they refuse to abide by the will of the people. It's called an amendment process, and we must have a federal constitutional amendment that says that marriage in the United States shall only be between a man and a woman. It is time for every Southern Baptist and other persons of faith who agree to contact their senators and tell them they want them to vote for the Marriage Protection Amendment."

In his decision Bataillon focused mostly on the second sentence, saying that it was too broad and could threaten relationships between roommates, co-tenants, foster parents and related people who share living arrangements. He said it also could affect the ability of private parties to make contracts and could impact real estate transactions.

The Alliance Defense Fund's Babione disagreed with Bataillon's reasoning.

"That totally takes the amendment out of context," Babione said. "The amendment establishes that we're talking about legal unions. Contracts are not legal unions. … The idea that it would impact roommates is silly."

In his ruling Bataillon also said the amendment targets homosexuals.

"[I]t is clear that the purpose of Section 29 is to deny access to the legislative process by this group of citizens (or by people who would lobby on their behalf)," he wrote. "The evidence shows that the intention of Section 29 is to make this class of people unequal, thereby disadvantaging a group, a purpose that violates the Equal Protection Clause of the United States Constitution."

Liberal activists praised the ruling.

"The judge was clear that states can’t enact amendments that bar gay people from the democratic process," Amy Miller of ACLU Nebraska said in a statement. "Committed same-sex couples need the same protections for their families that married couples enjoy, and we’re hopeful that the legislature will take up this issue soon."

But ADF's Babione said the amendment "doesn't target anyone" based on their homosexuality. Amendment supporters note the amendment also impacts other groups, such as polygamists.

"[The amendment] simply says that the state will recognize only marriage between a man and a woman and that no other marriage-type relationship will be recognized by the state," Babione said.

Babione said the judge's reasoning could be applied to any state constitutional amendment -- even those not dealing with "gay marriage."

"The same argument could be made about every state constitutional amendment that's passed -- that if the losing side is a political minority, which they must be if they lost, then they are somehow deprived of their right to participate in the political process regarding the subject matter of the amendment. I don't see how you would distinguish the losing side of any constitutional amendment from this kind of decision."

Following the ruling a host of pro-family leaders issued statements calling for the passage of a marriage amendment to the U.S. Constitution. Last year it was blocked from receiving a vote.

The marriage amendment in the U.S. Senate is Senate Joint Resolution 1 and in the House is House Joint Resolution 39. Constitutional amendments require the approval of two-thirds of the House and Senate and three-fourths of the states.

Focus on the Family's James Dobson said in a statement, "Last year when the Marriage Protection Amendment was being debated in the U.S. Senate, some senators –- including Nebraska's own Ben Nelson –- used the excuse that the MPA was 'not needed,' and that the crucial matters MPA addresses could be handled at the state level. Apparently not."

Dobson continued, "Now we have dramatic evidence that this legal fig leaf is easily stripped away by judicial activism. … I call on the members of Congress to act without delay to send a marriage-protection amendment to the states for ratification -- our government 'of the people, by the people, for the people' demands nothing less."

The decision will be appealed to the Eighth Circuit Court of Appeals, which includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.

For more information about the national debate over "gay marriage," visit http://www.bpnews.net/samesexmarriage