On January 16, 2015, the U.S. Supreme Court announced that it would hear four new cases on the constitutionality of same-sex marriage before the current session ends in June. Because of the split in federal appeals courts, the U.S. Supreme Court will decide two separate issues. Couples seeking to marry can raise that issue, and couples seeking official recognition of their existing marriages can argue that question.
The U.S. Supreme Court issued historical rulings in June 2013 on the issue of same-sex marriage. In Windsor v. United States, the Court, by a 5-4 ruling, held that the Defense of Marriage Act (DOMA), the 1996 federal law, is unconstitutional. The decision gives same-sex couples who are legally married equal rights to benefits the federal government provides to married couples. In Hollingsworth v. Perry, the Court, by a 5-4 ruling, held that the proponents of California’s ban on same-sex marriage, Proposition 8, did not have standing to appeal the federal district court’s order invalidating the ban. The salient effect of the ruling allowed same-sex marriage to resume in California. However, the Court stopped short of proclaiming same-sex marriage a constitutional right. They left it to the states to determine whether same-sex couples have the same right to marry as their straight counterparts.
As of now, same-sex marriages are allowed in thirty-six states and the District of Columbia, with bans remaining in the other fourteen, including the State of Nebraska.
Nebraska’s same-sex marriage ban, a constitutional amendment, overwhelmingly approved by voters in 2000, 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.”
In 2001, a challenge to the Nebraska’s same-sex marriage ban was brought forward by Citizens for Equal Protection, the ACLU and others. In May 2005, in Citizens for Equal Protection v. Bruning, Judge Joseph Bataillon of the U.S. District Court for the District of Nebraska held that the state constitutional amendment violates the United States Constitution. However, the 8th U.S. Circuit Court of Appeals upheld the constitutionality of the ban and reinstated the measure in July 2006, holding that “laws limiting the state-recognized institution of marriage to heterosexual couples … do not violate the Constitution of the United States.”
In November 2014, the ACLU filed a lawsuit, Waters v. Heineman, in Nebraska on behalf of seven same-sex couples who seek state recognition of their marriages or who seek the freedom to marry in Nebraska, despite the state’s ban passed by voters in 2000. The plaintiffs allege that the state’s constitutional marriage ban unlawfully discriminates against lesbians, gay men, and their children.
On January 21, 2015, the Nebraska Attorney General’s Office requested that the present lawsuit challenging Nebraska’s gay marriage ban be stayed pending action by the U.S. Supreme Court. However, on January 27, 2015, Senior Judge Joseph Bataillon denied the state’s request to delay proceedings and scheduled oral arguments for February 19, 2015.
The Nebraska Supreme Court previously heard the case Nichols v. Nichols, which could have provided an opening to consider the constitutionality of Nebraska’s marriage ban. The case was filed by a woman seeking to divorce her same-sex spouse, whom she legally married in Iowa. The Lancaster County judge ruled that the court couldn’t grant the divorce without recognizing the marriage. However, the Nebraska Supreme Court dismissed the case in June 2014, finding that the appeal was premature and sent the case back to Lancaster County District Court.
We will be watching the court closely as this issue continues to unfold to see what changes may take place. The outcome of Judge Bataillon’s decision and the upcoming United States Supreme Court rulings will have significant legal and cultural impacts on citizens of Nebraska and across the United States.