Tuesday, November 11, 2014

Leaked: Nebraska ACLU will sue next Monday to overturn state's gay marriage ban

Both the Lincoln Journal-Star and the Omaha World-Herald are reporting today that the Nebraska chapter of the American Civil Liberties Union will file suit Monday to overturn the state's constitutional ban on gay marriage (Initiative 416), one of the strictest in the nation, passed in 2000.
     Nebraska had been the only state within the 8th U.S. Circuit Court of Appeals district without a federal challenge to a law banning same sex marriage.
     Nebraska's GOP Governor-elect, TD Ameritrade scion Pete Ricketts, has already vowed to fight challenges to the state's ban.
     The World-Herald seems to have got the story first; evidently an email sent to same-sex marriage supporters working with the ACLU was forwarded to the paper. That email, written by former State Senator and current ACLU Executive Director Danielle Conrad, said the group
     "plans to request a preliminary injunction against the state because of 'the circumstances of one of the couples involved.'
     ...Conrad said the legal team working on the planned lawsuit in Nebraska includes Leslie Cooper of the national ACLU, Omaha attorneys Susan Koenig and Angela Dunne, and Amy Miller, legal director for ACLU Nebraska."
     The 8th U.S. Circuit court of Appeals covers seven states. Minnesota and Iowa already allow gay marriage and suits challenging bans on marriage equality have been filed in South and North Dakota, Missouri and Arkansas.

A brief overview of legal actions addressing gay marriage in Nebraska since Initiative 416 passed:
     From Wikipedia:
     On May 12, 2005, United States District Judge Joseph F. Bataillon ruled that Initiative Measure 416 violated the Equal Protection Clause of the Fourteenth Amendment and was a bill of attainder in violation of the Contract Clause of Article I. Nebraska Attorney General Jon Bruning appealed the decision to the Eighth Circuit in St. Louis, Missouri.
     In 2006, a federal lawsuit, Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), was filed challenging the federal constitutionality of Nebraska Initiative Measure 416, a 2000 ballot initiative that amended the Nebraska Constitution to prohibit the recognition of same-sex marriages, civil unions, and other same-sex relationships.
     On July 14, 2006, the Eighth Circuit reversed Judge Bataillon's decision. It held that Initiative Measure 416 did not violate the Equal Protection Clause, was not a bill of attainder, and did not violate the First Amendment. The Eighth Circuit held that "laws limiting the state-recognized institution of marriage to heterosexual couples ... do not violate the Constitution of the United States." The plaintiffs did not appeal to the Supreme Court.
      Bruning was the only decision of a U.S. Court of Appeals to rule that a state ban on same-sex marriage comports with the U.S. Constitution until the Sixth Circuit did so on November 6, 2014.
From Freedom to Marry (edited):
     On June 13, 2014, the Nebraska Supreme Court dismissed a petition from two women (Nichols vs. Nichols) for the dissolution of their marriage, saying that it could not address constitutional issues in the case because it did not have jurisdiction to hear the case because Nichols appealed a lower court's denial of the divorce from a conditional order rather than a final judgment. The plaintiff has said that she would continue pushing for the divorce.

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