Lawyers weigh pros and cons of asking Supreme Court to strike down state’s harshly-worded gay marriage ban
Last week, the U.S. Court of Appeals for the Eighth Circuit denied a request to reconsider a July ruling that upheld Nebraska’s harshly worded ban on same-sex marriage and other legal ties between gay couples.
The rejection leaves Lambda Legal Defense and the American Civil Liberties Union between a rock and a hard place.
The gay advocates who brought the federal challenge to Nebraska’s law in 2003 can either give up the fight, or appeal to the U.S. Supreme Court.
The High Court only accepts a tiny fraction of petitions, so the second option may lead nowhere. And if, on the other hand, the justices took review of the lawsuit, the community risks the crushing blow of a negative Supreme Court precedent that would give the green light to draconian anti-gay laws and amendments.
Yet there is an upside.
The arguments against the six-year-old Nebraska law are not based on the right to marry. Instead, they rest squarely on the rationale of the Supreme Court’s own 1996 ruling in the case against Colorado’s Amendment 2.
That ruling, in Romer v Evans, was decided by a 6-3 margin that included Justice Sandra Day O’Connor.
Justice O’Connor is no longer on the bench. But the other five members of the Romer majority are still serving on the court, including the author of the decision, Justice Anthony Kennedy.
In Romer, the justices ruled that an amendment preemptively blocking consideration of gay rights laws unconstitutionally barred a class of people gays and lesbians from access to the political process. Likewise, in Nebraska, the marriage amendment singles out same-sex couples by name, and its second sentence denies any legal recognition to “two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship.”
In an example of its impact, three years ago the state attorney general confirmed that a proposed bill to allow surviving partners to bury their loved ones would not be constitutional under the amendment. If a bill of this sort can’t even be introduced, the GLBT community in the Husker State is arguably cut off from the political process just as sharply as their counterparts in Colorado.
Assuming that Romer’s rationale governs the situation in Nebraska, there’s reason to believe that the Supreme Court would take the Nebraska case and reaffirm its own precedent by at least a 5-4 margin. But that’s only an assumption, and the stakes are high.
In a side note, gay rights lawyers preparing to argue Romer 10 years ago got some free assistance from none other than current Chief Justice John Roberts.
According to Paul Cates, spokesman for the American Civil Liberties Union Gay and Lesbian Rights Project, the lawyers are expected to take their time and consult with the national GLBT legal community before making a decision.
At this point, Cates says views on the subject are “all over the map.”
Lambda and the ACLU have 90 days to petition the Supreme Court.
This article appeared in the Dallas Voice print edition, September 8, 2006.