Grounds for lawsuit to be equal-protection clause

LINCOLN - The Nebraska chapter of the American Civil Liberties Union hopes to challenge the Defense of Marriage Amendment, Initiative 416, as soon as possible after the first of the year.

The ACLU board of directors voted unanimously Saturday to sue for invalidation of the amendment, which bans gay marriage, domestic partnerships, civil unions "and other similar same-sex relationships." (Sixteen directors were present.) Nebraska voters on Nov. 7 overwhelmingly approved the gay-relationships initiative, which goes further than any other in the country.

Opponents of the initiative said the second clause of the amendment could lead to invalidation of legal protections for gay families and prevent companies from offering domestic-partner benefits to their employees. Proponents dismissed those claims, saying their intent was to defend marriage from attempts to redefine it through imitations of marriage like civil unions and domestic partnerships.

"There was no dissension on the board in terms of what we should do," said Tim Butz, ACLU Nebraska executive director. "The mantra of the ACLU in Nebraska is it's constitutionally flawed, and it has to be thrown out."

With help from the national ACLU's Lesbian and Gay Rights Project and the Lambda Legal Defense Fund, the state ACLU chapter plans to first identify plaintiffs who have been injured by 416. (The amendment doesn't go into effect until it's certified in mid-December.) National lawyers will also help refine a litigation strategy, with an eye toward being in court just after the first of the year - perhaps by the end of January.

Butz said grounds for the lawsuit would be the U.S. Constitution's equal protection clause. Nebraska's amendment violates that clause, Butz said, in this way: If a heterosexual couple lives together for a long time and gets a common-law marriage in Vermont, it's recognized in Nebraska. If a homosexual couple gets a civil union in Vermont, it won't be recognized in Nebraska.

"The amendment is setting up a situation where people are being treated differently without a compelling government interest," Butz said.

Some gay-rights advocates have predicted this will be the gay-rights case that goes to the U.S. Supreme Court. Will ACLU pursue it that far?

"We'll fight it until victory," Butz said. "This not something that the ACLU is going to let slip off the docket."

Nebraska's attorney general is responsible for defending against challenges to its laws. Deputy Attorney General Steve Grasz declined to discuss the office's legal strategy without knowing more about the grounds of the ACLU's planned lawsuit.

Meanwhile, the New York-based Lambda Legal Defense Fund is also at work on examining ways to challenge the amendment. "416 is one of our top priorities right now," said David Buckel, a senior staff attorney with the gay-rights organization. "Our plan is to work closely with the ACLU to see what might be done."

Source: Nebraska StatePaper.com: By John Fulwider, November 19, 2000

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ACLU, Lambda Legal Defense considering lawsuits

LINCOLN - The coming legal challenge against Initiative 416, also called the Defense of Marriage Amendment, is only in the very initial planning stages. But already some are calling this the case that will finally bring gay rights before the U.S. Supreme Court.

Nebraska voters on Tuesday overwhelmingly approved a gay-relationships initiative that went further than any other in the country. It set in place a constitutional ban on gay marriages, but also banned domestic partnerships, civil unions and "similar same-sex relationships."

Opponents of the initiative said the second part could lead to invalidation of legal protections for gay families and prevent companies from offering domestic-partner benefits to their employees. Proponents dismissed those claims, saying their intent was to defend marriage from attempts to redefine it through imitations of marriage like civil unions and domestic partnerships. They further said that they did not want out-of-state groups to influence Nebraska laws.

One of the people predicting possible Supreme Court review of the initiative is Amy Miller, a staff attorney with ACLU Nebraska. Her organization and the New York-based Lambda Legal Defense Fund are considering challenges to 416 in cooperation with Nebraska Advocates for Justice and Equality. That organization is taking over anti-416 efforts now that the election is over and the anti-416 committee Nebraskans Against 416 is being dissolved.

"I think it would be appropriate for the Supreme Court to make a decision finally," she said. The court has declared through years of decisions that marriage is one of the most important rights an individual has, Miller said. "It may finally be time for this country to make a decision that what people do in the privacy of their own home is what they do in the privacy of their own home."

Miller called Initiative 416's language poorly written and discriminatory, saying it was along the lines of Nebraska's partial-birth abortion ban law "that got slammed down by the Supreme Court."

"In Nebraska we've got a poor record of trying to make up legal concepts and thinking we can carry on without any questions," Miller said.

But talk of Supreme Court reviews is getting way ahead of the game when there isn't even a lawsuit filed. Miller said ACLU Nebraska's board of directors would meet Nov. 18 to decide how it would be involved in challenging 416: As the lead organization in a lawsuit, or in a support role.

Miller said a challenge to the initiative's constitutionality could address questions of privacy rights, rights of free association, or the right to equal protection of the laws. There might also be a legal challenge to the validity of the election because of a glitch that had ballots in several counties saying marriage is between a man and a "women."

Plaintiffs selected for the lawsuit will determine in which court the suit is filed and how quickly the case might proceed to federal appellate levels, Miller said.

Evan Wolfson, a Lambda Legal Defense Fund attorney, said his organization planned to talk with leaders of the fight against 416, as well as gay families that might be harmed by the constitutional amendment's provisions.

"Then we will see what the best way to protect those families would be," Wolfson said. He stressed that no lawsuit was actually yet in the works, and might not be for some time. But he was indicated confidence that a court would have to declare the amendment invalid. Even the present conservative Supreme Court ruled 6-3 in 1996's Romer v. Evans decision that a measure must be ruled unconstitutional if it makes a certain group of people "strangers to the law," Wolfson said.

Wolfson pointed out that on Tuesday, Alabama voters had an opportunity to become the last state in the union to drop a long-standing, but currently unenforced, ban on interracial marriage. Two-fifths of Alabama voters chose to keep the discriminatory language in their state's constitution, Wolfson said. "So what Nebraska has done is open another chapter in our nation's unfortunate history of sometimes writing bigotry into our states' constitutions."

The task of defending 416 will fall to Attorney General Don Stenberg. The people who supported 416 in the Nebraska Coalition for the Protection of Marriage will offer to help defend the measure as well, spokesman Dan Parsons said.

"Certainly we will take a very active role in providing whatever legal support the state would need in that process," Parsons said.

Source: Nebraksa StatePaper.com: by John Fulwider, November 09, 2000

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Court battle is guaranteed

LINCOLN - Nebraska voters adopted a constitutional amendment barring recognition of gay and lesbian marriages on Tuesday. The amendment was immediately promised a trip through the court system.

Initiative 416 carried 70 percent of the vote. The numbers were overwhelming: For, 433,889, Against: 182,980. The initiative also created a constitutional ban on domestic partnerships, civil unions and "similar same-sex relationships."

Both the coalition of religious groups that promoted the initiative and the coalition of civil-rights and religious groups that opposed it said a court test was a certainty.

Even before the polls closed, Nebraskans Against 416 was consulting with the American Civil Liberties Union and the Lambda Legal Defense Fund on possible legal challenges. A lawsuit was not expected to be filed, however, until at least next week.

Initiative 416, backed by nearly $750,000 in mostly out-of-state contributions, added these words to the Nebraska Constitution: "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."

The first sentence changed nothing, as gay marriages are not allowed in any state. Opponents of the initiative said the second sentence could lead to invalidation of legal protections for gay families and prevent companies from offering domestic-partner benefits to their employees. Proponents dismissed those claims, saying their intent was to defend marriage from attempts to redefine it through imitations of marriage like civil unions and domestic partnerships. They further said that they did not want out-of-state groups to influence Nebraska laws.

Nebraskans Against 416 and allied groups campaigned against the initiative with rallies, leaflets, door-to-door politicking and small radio and television campaign. The Nebraska Coalition for the Protection of Marriage, an alliance of evangelical Protestants, Catholics and Mormons, relied mostly on heavy radio and television advertising. Guyla Mills, who led the Defense of Marriage Amendment Committee that gathered the petition signatures to put 416 on the ballot, served as the initiative's defender at more than 20 forums across the state concerning the measure. She plans to leave Nebraska this week for a job with Kerusso Ministries in Virginia, an organization that aims to cure gays of their homosexuality.

Dan Parsons, representing supporters of the initiative, said for the first time Tuesday night that polling showed the proposal had less than 50 percent support when the campaign for it began. Parsons said he knew a legal fight was ahead. "We fully intend to protect it in the courts," he said.

"The numbers aren't in our favor tonight, but everything else is," said M.J. McBride, spokeswoman for Nebraskans Against 416. "We are excited about the work we have done and the fair-minded people we have united across the state."

She said the amendment would be tested in the courts.

McBride said the fight against Initiative 416 had ultimately been of help to the gay and lesbian community in Nebaska. She said that "what we have done is shifted the issue of gay rights to one of civil rights." McBride also said the issue had brought many gays and lesbians out of the closet.

"This has been the most extreme attack on gay families we have seen in Nebraska, and we have seen people overnight become activists," she said.

Source: Nebraska StatePaper.com: By John Fulwider and John Barrette, November 8, 2000

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