2 Court Setbacks for Gay Marriage

LINCOLN, Neb. -- Courts handed victories to gay-marriage opponents in two states Friday, reinstating Nebraska’s voter-approved ban on same-sex marriage and throwing out an attempt to keep a proposed ban off the ballot in Tennessee.

In the Nebraska case, the 8th U.S. Circuit Court of Appeals overturned a judge’s ruling last year that the ban was too broad and deprived gays and lesbians of participation in the political process, among other things.

Seventy percent of voters had approved the ban as a constitutional amendment in 2000.

It went further than similar bans in many states in that it also barred same-sex couples from many legal protections afforded to heterosexual couples. For example, the partners of gays and lesbians who work for the state are not entitled to share their health insurance and other benefits.

New York-based Lambda and the American Civil Liberties Union’s Lesbian and Gay Project sued, arguing it violated gay rights.

The court, however, ruled that the amendment “and other laws 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.”

In Tennessee, the state Supreme Court dismissed a lawsuit by the ACLU that contended the state failed to meet its own notification requirements for a ballot measure asking voters to ban gay marriage. The high court ruled unanimously Friday that the ACLU didn’t have standing to file the suit.

To have standing, plaintiffs must prove the timing of notification -- whether it was done properly or not -- somehow caused them injury, said James F. Blumstein, Vanderbilt University professor of constitutional law.

“Courts do not hear abstract questions brought by people who do not have a particularized stake in the issue,” he said.

Byron Babione, Alliance Defense Fund senior counsel who represented lawmakers hoping to keep the amendment on the ballot, said he believed the court’s decision showed that no one would be able to prove they were injured by the timing of the notification.

Tennessee already has a law banning gay marriage, but lawmakers who supported the proposed amendment said they wanted a backup in case the law was overturned. Similar steps have been taken in many of the other 44 states that have specifically barred same-sex marriage through statute or constitutional amendment.

Only Massachusetts allows gay marriage, acquired through a ruling by the state’s high court. Vermont and Connecticut allow same-sex civil unions that confer the same legal rights as heterosexual married couples.

But even in Massachusetts, lawmakers are trying to ban gay marriage, and the high court ruled this week that legislative efforts to put a ban on the state’s 2008 ballot could move forward.

The top courts in two other states also dealt gay rights advocates setbacks last week: The New York court rejected a bid by same-sex couples to win marriage rights, and the Georgia court reinstated a constitutional amendment banning gay marriage there.

David Buckel, senior staff attorney at Lambda Legal, said Nebraska’s ban is “the most extreme of all the anti-gay family laws in the nation,” and his group is considering asking the appeals court to rehear the case.

He said the court ignored the claims raised in the lawsuit.

“We did not sue about marriage, we sued because our clients were told it was a waste of time to try to get a domestic partnership bill passed” in the Legislature, he said. “Yet the court is reasoning as if what we asked for was the right to marry.”

Nebraska Atty. Gen. Jon Bruning countered that no one’s freedom of expression or association was violated.

“Plaintiffs are free to petition state senators to place a constitutional amendment on the ballot,” Bruning said. “Plaintiffs are similarly free to begin an initiative process to place a constitutional amendment on the ballot, just as supporters ... did.”