Same-sex marriage has been legal in Nebraska since June 26, 2015, when the U.S. Supreme Court ruled in the case of Obergefell v. Hodges that the denial of marriage rights to same-sex couples violates the Fourteenth Amendment to the U.S. Constitution. Following the court ruling, Attorney General Doug Peterson announced that the state of Nebraska would comply and recognize same-sex marriages.[1]

Constitutional amendment

In November 2000, Nebraska voters adopted Initiative Measure 416, a constitutional amendment defining marriage as the "union of a man and a woman" and prohibiting the recognition of same-sex relationships under any other name.[2] The measure passed with 70.10% in favour and 29.90% opposed.[3] The state has only restricted marriage rights for same-sex couples in its state constitution; it has never passed a measure to that effect in the form of a statute passed in the Nebraska Legislature. Nebraska extended hospital visitation rights to same-sex couples through a designated visitor statute.[4]

In January 2016, there were discussions in the Nebraska Legislature to repeal the defunct same-sex marriage ban from the State Constitution. Senator Burke Harr argued that the Constitution should be consistent with the law of the land regarding same-sex marriage. Such a change would require approval by voters. Two religious organizations opposed the measure, claiming it was "too costly" and that it would "only create more divisiveness". Senator Patty Pansing Brooks later said, "Enough hurt. Enough harm. Enough damage has been done by the religious institutions."[5][6] Senator Matt Hansen also introduced bills to make all references to marriage gender-neutral in state statutes, though the bills failed to pass.[5][6]

In January 2021, Senator Pansing Brooks presented a ballot measure to repeal the state's defunct same-sex marriage ban.[7] She argued that "putting the issue on the ballot would allow voters to show that public attitudes toward same-sex marriage have changed in Nebraska". The proposal was referred to the Judiciary Committee, which approved the measure on February 11 by a 5–2 vote, but it was not voted on before the State Legislature adjourned sine die on May 27, 2021.[8] A similar measure was proposed in 2023 by Senator Jen Day, but it also failed to pass before the end of the legislative session.[9]

Lawsuits

Citizens for Equal Protection v. Bruning

In 2003, two LGBT advocacy organizations, Citizens for Equal Protection and the Nebraska Advocates for Justice and Equality, joined by the American Civil Liberties Union (ACLU) and also represented by Lambda Legal, filed suit in the U.S. District Court for the District of Nebraska challenging the constitutionality of Initiative Measure 416. District Court Judge Joseph Bataillon ruled in favour of the plaintiffs on May 12, 2005, overturning Initiative Measure 416 based on the Equal Protection Clause, the First Amendment, and the prohibition on bills of attainder contained in the Contract Clause.[10]

The state appealed the decision to the Eighth Circuit Court of Appeals and on July 14, 2006, in a unanimous opinion written by Chief Judge James B. Loken, the Eighth Court reversed the district court's decision on all three of its conclusions.[11] The plaintiffs' subsequent request for an Eighth Circuit rehearing en banc was denied and they elected to not file a petition for certiorari in the U.S. Supreme Court.[12][13]

Waters v. Ricketts

On November 17, 2014, the ACLU filed a lawsuit, originally Waters v. Heineman, in federal court on behalf of seven same-sex couples.[14] The plaintiffs sought to overturn Nebraska's same-sex marriage ban and to have their out-of-state marriages recognized.[15] The case became Waters v. Ricketts when Pete Ricketts succeeded Dave Heineman as governor in January 2015. On January 21, 2015, the state asked for proceedings to be stayed pending action by the U.S. Supreme Court in related same-sex marriage cases,[16] and on January 23 Senior Judge Joseph Bataillon cancelled a hearing he had scheduled for January 29. On January 27, he denied the state's request to suspend proceedings.[17] He held oral arguments on February 19.[18] On March 2, he ruled for the plaintiffs, setting March 9 as the effective date of his order.[19]

Attorney General Doug Peterson immediately announced that the state would appeal the ruling and asked the Eighth Circuit Court of Appeals to stay Judge Bataillon's order prohibiting enforcement of the state's same-sex marriage ban.[20] He requested a stay pending appeal the next day,[21] which the Eighth Circuit granted on March 6, while also scheduling oral arguments for May 12 alongside three other same-sex marriage cases.[22]

Obergefell v. Hodges

Following the decision of the U.S. Supreme Court in Obergefell v. Hodges on June 26, 2015, Attorney General Peterson notified the Eighth Circuit that the state would no longer enforce its same-sex marriage ban.[23] Same-sex couples began immediately marrying in Nebraska following the Supreme Court's ruling, with Kathy Pettersen and Beverly Reicks being the first same-sex couple to file marriage paperwork at the Douglas County Clerk's Office on June 26.[24] Barbara DiBernard and Judith Gibson were the first to wed in Lancaster County, which contains the capital city of Lincoln.[25] Susan and Sally Waters, plaintiffs in Waters, were issued a license on Friday, June 26 by the Douglas County Clerk, Tom Cavanaugh.[26]

Governor Ricketts issued a statement critical of the ruling but said the state would comply, "We will follow the law and respect the ruling outlined by the court." Attorney General Peterson said the court had "overstepped its proper role in our system of government". State tax officials quickly issued guidance for married same-sex couples, and the Department of Motor Vehicles started processing name changes for driver's licenses based on the marriage licenses of same-sex couples.[27] Most Nebraska counties began immediately issuing marriage licenses to same-sex couples, or announced their willingness to do so. Officials in Buffalo, Dakota and Phelps counties initially reported they would not be issuing such licenses until they received further guidance from the state. However, both Governor Ricketts and Attorney General Peterson had announced by June 29, 2015 that the state would comply with the court's ruling and those counties promptly followed that guidance.[28] The Sioux County Clerk, Michelle Zimmerman, was the only county clerk in Nebraska to expressly state she would not issue marriage licenses to same-sex couples, though the county's deputy clerk confirmed on July 11, 2015 that the office would process the marriage licenses of any same-sex couple who wishes to marry in the county.[29]

On July 1, 2015, the Eighth Circuit lifted the stay it had imposed on Judge Bataillon's order, allowing his prohibition on the enforcement of Nebraska's denial of marriage rights to same-sex couples to take effect.[30] On February 6, 2016, Judge Bataillon issued a permanent injunction striking down the state's defunct same-sex marriage ban. Though a formality, the injunction ordered state officials to treat same-sex couples the same as opposite-sex couples in everything from processing marriage licenses to issuing birth certificates, the latter something the state had previously attempted to ban same-sex couples from amending.[31]

Native American nations

The Law and Order Code of the Ponca Tribe of Nebraska states that the tribe must "ensure that couples of the same sex and couples of opposite sex have equal access to marriage". The change was decided by the Tribal Council on a meeting on August 26, 2018. As of 2021, this wording has changed to "ensure that couples of the same sex and couples of opposite sex have equal access to marriage and to the protections, responsibilities, and benefits that result from marriage."[32] During its monthly meeting in March 2022, two members of Tribal Council of the Winnebago Tribe of Nebraska proposed a motion to recognize same-sex marriages on the reservation. The motion was opposed by other council members who allegedly used homophobic language and called for LGBT people to be banned from the tribe. The motion to recognize same-sex marriages was voted down, with 4 of the 7 council members voting against. Following the vote, Tyler LaMere, a 17-year-old two-spirit tribal member, released a video on TikTok, which was viewed more than a million times, calling on tribal leaders to reconsider their decision. The social media campaign led to the Tribal Council reconsidering the decision during its April 11 meeting. Council member Isaac Smith, who had voted to ban same-sex marriage back in March, introduced a motion to reconsider that vote. It passed 5–0 with two abstentions. The council then voted to add provisions recognizing same-sex marriages to the tribal court code. "There was a real humbleness of the leadership to apologize to the relatives that they had offended.", said council member Victoria Kitcheyan.[33][34]

Same-sex marriages validly performed in other jurisdictions, including in the state of Nebraska, are legally recognized on the reservation of the Sac and Fox Nation of Missouri in Kansas and Nebraska.[35] It is unclear if same-sex marriages are recognized on the reservation of the Iowa Tribe of Kansas and Nebraska as tribal officials have not publicly commented on the issue.

While there are no records of same-sex marriages as understood from a Western perspective being performed in Native American cultures, there is evidence for identities and behaviours that may be placed on the LGBT spectrum. Many of these cultures recognized two-spirit individuals who were born male but wore women's clothing and performed everyday household work and artistic handiwork which were regarded as belonging to the feminine sphere.[36] The Winnebago people have traditionally recognized two-spirit people, known in their language as teją́čowįga (pronounced [tedʒãꜜtʃowĩga]). They were believed to have been blessed by the spirit of the Moon, and were "holy and highly respected for special gifts such as prophesy, healing, artistry, and excelling at women's tasks". Many teją́čowįga married cisgender men, without indication of polygyny.[36] The Ponca people refer to two-spirit people as míⁿxuga (pronounced [mĩꜜxuga]). They were believed to have been "instructed by the Moon", and would sometimes take men as partners.[36]

In the Chiwere language, two-spirit people are called mihxóge (pronounced [mihxoꜜkɛ]). "The mihxóge were respectfully treated as a special class of religious leaders. Among the late Baxoje, Jiwére-Ñút'achi elders, the mihxóge were still regarded with awe for their spiritual connection and consecrated role in harmony with the Holy Grandfather spirits. [...] They're half man, half woman. And they don't have (heterosexual) relationship(s). They do something (to fulfill needs) among themselves. [...] They're not crazy. They just got that born in them. Born in their nature."[37] Two-spirit people had "visions of female deities or the Moon that served to endorse their identity". Sauk two-spirit individuals, known as ayakwa (pronounced [ɑˈjɑkwɑ̥]), also characterized their gender role change as "an unfortunate destiny which they cannot avoid, being supposed to be impelled to this course by a vision from the female spirit that resides in the Moon." They were sacred and honored annually with a dance in which only those men who had had sexual intercourse with an ayakwa were allowed to participate.[36]

Demographics and marriage statistics

The 2020 U.S. census showed that there were 2,544 married same-sex couple households (1,032 male couples and 1,512 female couples) and 1,951 unmarried same-sex couple households in Nebraska.[38]

Public opinion

Public opinion for same-sex marriage in Nebraska
Poll source Date(s)
administered		 Sample
size		 Margin of
error		  % support  % opposition  % no opinion
Public Religion Research Institute March 11 – December 14, 2022  ?  ? 60% 33% 7%
Public Religion Research Institute March 8 – November 9, 2021  ?  ? 58% 40% 2%
Public Religion Research Institute January 7 – December 20, 2020 348 random telephone
interviewees		  ? 69% 31% <0.5%
Public Religion Research Institute April 5 – December 23, 2017 519 random telephone
interviewees		  ? 54% 33% 13%
American Values Atlas/Public Religion Research Institute May 18, 2016 – January 10, 2017 747 random telephone
interviewees		  ? 61% 27% 12%
American Values Atlas/Public Religion Research Institute April 29, 2015 – January 7, 2016 587 random telephone
interviewees		  ? 49% 43% 8%
New York Times/CBS News/YouGov September 20 – October 1, 2014 721 likely voters ± 3.9% 40% 46% 14%
Public Policy Polling September 30 – October 2, 2011 739 voters ± 3.6% 36% 54% 10%
Greenberg Quinlan Rosner Research August 2–4, 2011 305 adults ± 4% 42% 51% 12%

See also

References

  1. ↑ Doug Peterson (26 June 2015). "Office of Nebraska AG: Response to U.S. Supreme Court Ruling on Marriage". Archived from the original on 30 June 2015.
  2. ↑ David Orgon Coolidge, "Evangelicals and the Same-Sex 'Marriage' Debate," in Michael Cromartie, ed., A Public Faith: Evangelicals and Civic Engagement (Washington, DC: Ethics and Public Policy Center, 2003), 98-99, available online, accessed April 11, 2011
  3. ↑ "2000 Nebraska Initiative General Election Results". U.S. Election Atlas.
  4. ↑ "Nebraska: Marriage Equality facts". Marriage Equality USA.
  5. 1 2 Nohr, Emily (January 28, 2016). "Senator wants Nebraska Constitution to drop same-sex marriage ban; 2 religious groups oppose". Omaha World-Herald.
  6. 1 2 Pluhacek, Zach (January 27, 2016). "Religious groups want Nebraska's gay marriage ban kept on the books". Lincoln Journal Star.
  7. ↑ "Proposal would end Nebraska's unenforceable gay marriage ban". Lincoln Journal Star. January 29, 2021.
  8. ↑ "Senators advance proposal to let Nebraskans decide on removing same-sex marriage ban". Kearney Hub. February 12, 2021.
  9. ↑ "Proposed Nebraska amendment would extend term limits for state senators". WOWT. January 14, 2023.
  10. ↑ Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (D.Neb. 2005) Archived 2011-07-14 at the Wayback Machine
  11. ↑ "Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (8th Cir. 2006)" (PDF). Archived from the original (PDF) on 2011-12-13. Retrieved 2015-07-11.
  12. ↑ "Citizens for Equal Protection v. Bruning, Denial of Rehearing En Banc (8th Cir. 2006)" (PDF). Archived from the original (PDF) on 2010-12-30. Retrieved 2015-07-11.
  13. ↑ Pierceson, Jason (2014). Same-Sex Marriage in the United States: The Road to the Supreme Court and Beyond. Rowman & Littlefield Publishers. p. 213. ISBN 9781442236653. Retrieved July 25, 2014.
  14. ↑ Pluhacek, Zach (November 17, 2014). "7 couples sue over Nebraska's gay marriage ban". Lincoln Journal Star. Retrieved November 17, 2014.
  15. ↑ "ACLU Files Lawsuit - Seeks Freedom to Marry for Nebraskans". ACLU Nebraska. Archived from the original on November 24, 2014. Retrieved November 17, 2014.
  16. ↑ "Motion to Stay Proceedings". Scribd.com. U.S. District Court for Nebraska. Retrieved January 21, 2015.
  17. ↑ "Memo and Order denying state's request to stay proceedings". Scribd.com. U.S. District Court for Nebraska. Retrieved January 27, 2015.
  18. ↑ Tysver, Robynn (February 19, 2015). "No decision today on Nebraska's gay marriage ban". Omaha World-Herald. Retrieved February 19, 2015.
  19. ↑ Waters v. Ricketts (D. Neb. 2015)
  20. ↑ Geidner, Chris (March 2, 2015). "Nebraska Same-Sex Marriage Ban Unconstitutional, Federal Judge Rules". BuzzFeed News. Retrieved March 2, 2015.
  21. ↑ Johnson, Chris (March 2, 2015). "Court strikes down Nebraska's ban on same-sex marriage". Washington Blade. Retrieved March 3, 2015.
  22. ↑ "Stay Granted". Scribd.com. Eighth Circuit Court of Appeals. Retrieved March 5, 2015.
  23. ↑ "Motion on Mootness and to Vacate Preliminary Injunction". Equality Case Files. Eighth Circuit Court of Appeals. Retrieved June 26, 2015.
  24. ↑ "Heartland Response To Gay Marriage Ruling Is Quick". WOWT NBC Omaha. June 26, 2015.
  25. ↑ Stoddard, Martha (June 28, 2020). "5 years after landmark ruling, gay marriage more accepted but still controversial in Nebraska". Omaha World-Herald. Retrieved July 23, 2020.
  26. ↑ Tysver, Robynn (June 26, 2015). "'Everything we ever hoped for': Nebraska makes history with first gay weddings". Omaha World-Herald. Archived from the original on November 28, 2018.
  27. ↑ Stoddard, Martha (June 28, 2020). "5 years after landmark ruling, gay marriage more accepted but still controversial in Nebraska". Omaha World-Herald. Archived from the original on October 30, 2020.
  28. ↑ "Local government responses to Obergefell v. Hodges (Nebraska)". Ballotpedia.
  29. ↑ Robyn Tysver (11 July 2015). "Sioux County Clerk reverses course, will issue same-sex marriage licenses". Omaha.com.
  30. ↑ "Order Lifting Stay". Equality Case Files. Eighth Circuit Court of Appeals. Retrieved July 1, 2015.
  31. ↑ "Judge's order strikes down Nebraska ban on gay marriage". Sioux City Journal. 6 February 2016. Archived from the original on 8 February 2016.
  32. ↑ "Title IV Domestic Relations of the Law and Order Code of the Ponca Tribe of Nebraska" (PDF). Retrieved June 10, 2022.
  33. ↑ "Winnebago Tribe takes action to address marriage controversy 'Why shouldn't we have the same rights that they have?'". Indianz.com. April 13, 2022.
  34. ↑ Trudell, Tim (June 10, 2022). "Same-sex marriage vote on reservation leads to protest. Then, to changed minds". Flatwater Free Press.
  35. ↑ "Tribal Code of the Sac and Fox Nation of Missouri in Kansas and Nebraska, Title 6 Civil Procedure, Chapter 11 Marriage" (PDF). Sac and Fox Nation of Missouri in Kansas and Nebraska. p. 7. Retrieved September 19, 2022.
  36. 1 2 3 4 Sabine Lang (1998). Men as women, women as men: changing gender in Native American cultures. University of Texas Press. ISBN 0-292-74701-2.
  37. ↑ "Báxoje-Jiwére- Ñútˀachi Dictionary: mihxóge" (PDF). www.ksks.com. Retrieved August 17, 2022.
  38. ↑ "PCT1405 Couple Households, By Type". United States Census Bureau. Retrieved 11 December 2023.
  • Waters v. Ricketts, Judgement of the United States District Court for the District of Nebraska, March 2, 2015
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