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Advocates Hopeful Rulings Spell Doom for Neb. Gay Ban

Thursday Jan 16, 2014
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In the wake of recent rulings by federal judges to strike down state bans on same-sex marriage, gay marriage advocates are hoping to strike a similar blow to Nebraska’s strict ban that forbids even same-sex civil unions.

"We’re very optimistic," said the Rev. Scott Jones, senior minister at First Central Congregational Church in Omaha who married his partner, Michael, four years ago in a religious ceremony in Oklahoma. The couple moved to Omaha and formalized their marriage in Iowa, which allows same-sex marriage.

But the couple has faced a litany of problems trying to live as a married gay couple in Nebraska, including a confusing tax situation forcing them to file separate state tax returns because Nebraska doesn’t recognize their marriage.

Now Jones believes the overturning of all gay marriage bans "is inevitable."

"We’ve already won hearts and minds on this issue," he said.

A federal judge struck down Oklahoma’s gay marriage ban Tuesday although the order was put on hold while state and local officials complete an appeal. It was the second time in a month a federal judge has set aside a deeply conservative state’s limits on same-sex marriage, after Utah’s ban was reversed in December.

Nebraska doesn’t recognize same-sex marriages, civil unions, or domestic partnerships, under a constitutional amendment approved by 70 percent of voters in 2000.

The Nebraska chapter of the American Civil Liberties Union - on behalf of a group dubbed Citizens for Equal Protection - sued the state in 2003 challenging the ban. U.S. District Judge Joseph Bataillon struck down the measure in 2005, ruling it was overly broad and deprived gays and lesbians of participation in the political process, among other things.

But the victory was short-lived. In 2006, a three-judge panel of the 8th U.S. Circuit Court of Appeals reversed Bataillon’s ruling, reinstating Nebraska’s voter-approved ban. Its reasoning was the bans in Nebraska and other states "limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States."

Since then, there have been no federal challenges filed against the Nebraska law, and the ACLU said Wednesday that it has no plans to challenge the law again.

Ken Upton, an attorney for national civil rights organization Lambda Legal, said he thinks the 8th Circuit’s decision might have been different were it made today, citing shifting attitudes toward gay marriage.

"Nebraska’s ban is especially restrictive in the sense that it purports to cover so much more than marriage," he said. "It really is one that, I think, if a court were to re-examine it today ... it might get a different view."

State Sen. Brad Ashford of Omaha, who supports same-sex marriage, has said he wants to explore a possible "middle ground" of allowing civil unions, which he believes would receive stronger support from voters.

Excluding Utah and Oklahoma, Nebraska and 26 other states still have constitutional prohibitions on same-sex marriage. Four more - Indiana, Pennsylvania, West Virginia and Wyoming - do not permit it through state laws.

Upton, who sat in on arguments against Nebraska’s ban before the 8th Circuit panel in 2006, said those hoping to see Nebraska’s ban overturned will find their best hope with the U.S. Supreme Court. He said it "has the appetite to take this issue on ... and resolve this for the country once and for all."

Upton said the country’s highest court would likely first hear a challenge regarding Utah’s gay marriage ban, which was struck down by a federal judge earlier this month, and could do so this year.

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