Nebraska's 'Too Broad' Marriage Amendment Ruled Constitutional
by Jody Brown and Mary Rettig
July 14, 2006
(AgapePress) - - A federal court of appeals has overturned a lower-court decision and reinstated Nebraska's ban on homosexual "marriage" almost six years after the referendum on the constitutional amendment was passed overwhelmingly by the state's voters. The amendment had been challenged by pro-homosexual legal groups that claimed the ban was too broad.
Seventy percent of Nebraska voters approved the constitutional amendment in 2000. That amendment 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."
But the ACLU's Lesbian and Gay Project, in conjunction with the Lambda Legal Defense and Education Fund, filed a lawsuit against the ban, saying it was too broad and deprived homosexuals of participation in the political process. Nebraska Attorney General Jon Bruning, however, had argued the ban did not violate anyone's freedom of expression or association.
Today (July 14) the Eighth U.S. Circuit Court of Appeals, whose jurisdiction includes Nebraska, disagreed with the ACLU's and Lambda's argument, applying what is called a "rational basis" review. The amendment, stated the court, "and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests ...." Therefore, added the court, such laws, including the voter-approved amendment, "do not violate the Constitution of the United States." (Read the court's ruling) [PDF]
The ruling is a resounding victory for traditional marriage, says the chief counsel for the American Family Association Center for Law & Policy (CLP) -- and for the people of Nebraska, he adds. "The Eighth Circuit has resoundingly affirmed the will of the people of the state of Nebraska," says attorney Steve Crampton. The court took note of the "large majority" of voters who approved the ban. The CLP had authored an amicus brief in the case.
A Rational, Common-Sense Ruling
Crampton explains in layman's terms what constitutes a "rational basis" review. "In a nutshell, rational basis means when a legislature -- or in this case, really, the people -- enact a law, if there's any good reason, any rational basis for their having done so, then the court's job is to stand back and let the people speak," he says. "That's what they did here. That was the right thing to do."
Mat Staver, founder of Liberty Counsel, says his Orlando-based legal group is pleased with the Nebraska ruling stopping what he calls "the latest attempt by the homosexual agenda to radically redefine" the culture. Like the Eighth Circuit, he believes a state has an undeniable interest in protecting marriage.
"Common sense and human history underscores that marriage is distinct from other personal relationships," Staver says in a press release. "Procreation and raising children in an optimal environment with a mom and a dad are obvious interests in the state may prefer and protect."
Staver notes that when the Nebraska amendment was passed, it was the broadest in the country, effectively prohibiting same-sex marriage arrangements that may be called something else, such as "civil unions" and "domestic partnerships." This defeat, he contends, deals a "major blow" to the movement behind same-sex marriage, "because if the broadest kind of amendment is upheld, as it was today, then the more narrow amendments can also be upheld."
Indeed, there has been a series of defeats over the past two weeks for advocates of same-sex unions, as courts and legislatures in New York, Georgia, Connecticut, and Massachusetts -- the only state that has legalized homosexual marriage -- have come down on the side of traditional marriage in their decisions. And Tennessee also joined those ranks today when that state's Supreme Court ruled that voters in the Volunteer State will be allowed to vote on a constitutional amendment protecting traditional marriage.
Staver looks at those recent developments and says, "The same-sex marriage movement must be saying, 'Thank goodness it's Friday.' For the past two weeks, [that] movement has been rocked backward by stunning court decisions in favor of traditional marriage."
Brian Fahling, senior trial attorney for the Center for Law & Policy, concurs, implying that the tactic that has been employed by radical homosexual groups to beat back the onslaught of pro-marriage constitutional amendments appears to have backfired. "[T]he early success of homosexuals using the courts to force their radical agenda on an unwilling nation appears to be turning on them," Fahling offers. "Government by the people is always preferable to government by the judiciary."
