Fighting Initiative 416
Click here for a timeline of events in the
case against Initiative 416
Background
Article 1, Section 29 of the Nebraska Constitution, formerly known as
Initiative 416, was passed in November 2000 in a heavily debated
election that received the second highest turnout in the state’s history.
Promoted to voters simply as protection of traditional marriage, the law
goes far beyond restricting the right to marry to heterosexual couples.
The law specifically voids the uniting of two persons of the same sex in a
"civil union, domestic partnership, or other similar same-sex
relationship."
"This law makes gay
people second class citizens and hurts their families in many ways," said
Shelley Kiel of Nebraska Advocates for Justice and Equality (NAJE).
"Nebraskans in same-sex relationships can’t even lobby their
representatives for the right to decide where to bury their lifelong
partners, the right to take bereavement leave or the right to hospital
visitation or emergency leave if their partners become ill."
In 2003, Senator Nancy Thompson introduced a bill that would give same-sex couples
the right to make burial arrangements for their partners. In response,
Attorney General Jon Bruning issued an opinion on March 10, 2004, stating that
the bill was unconstitutional because of Section 29.
Since Nebraska’s law went into effect, business leaders within the state,
including James Clifton of the Gallup Corporation, have spoken out about
how the law has hurt the state’s image and economy. To stay
competitive, more business and government employees are providing health
insurance and benefits to lesbian and gay employees’ same-sex partners.
In late February, Clifton said Nebraska’s anti-gay law has hurt the
state’s economic prospects and “made ourselves a joke.” More than 150
local governments and more than 5,000 companies nationwide recognize
same-sex couples.
"The citizens of
Nebraska were manipulated into believing this law was about protecting the
institution of marriage, when in reality it was a carefully executed
campaign of discrimination and hate," said M.J. McBride, President of CFEP.
"Nebraska’s law is bad for families, bad for our state and plainly
unconstitutional."
The Plaintiffs
The lawsuit was filed on behalf of three organizations who argue their members are
harmed by Initiative 416. They are ACLU Nebraska, Nebraska Advocates for
Justice and Equality, and Citizens for Equal Protection. Our complaint
describes five gay and lesbian couples who are members of these three
organizations to demonstrate how 416 is harming Nebraskans.
The Families
As an example of who was injured by Section 29, the complaint describes
the lives of Judy Gibson and Barbara DiBernard of Lincoln, who
have been living together as a couple for over 14 years and have made
commitments to care for one another for the rest of their lives. Judy
has a degenerative disease that requires her to use a
wheelchair. Because of Nebraska’s law, Barbara, who works for the state
university, does not have the option of obtaining coverage for Judy on her
university health plan. Barbara is also prevented from advocating for a
policy authorizing her to take time off from work to take Judy to her
regular medical appointments.
Another family injured by Section 29 are mothers in Omaha. Donna Colley and Margaux Town-Colley have been in a committed, loving relationship
for over six years and are the proud parents of an 18-month-old son. With
a child’s needs to consider, Nebraska has made Donna and Margaux
especially concerned about what would happen if either of them dies or
should become incapacitated. The law makes it impossible for the couple
to seek legislation that would allow them to designate each other as the
person responsible for making emergency medical decision or funeral
decisions.
The Legal Argument
The suit claims that Initiative 416 blocks gays and lesbians from obtaining
any protection for their families through legislative means, in violation of
the federal constitution. It is very similar to the case of Romer v.
Evans, in which the U.S. Supreme Court struck down a Colorado
state constitutional provision that prevented cities for protecting gays and
lesbians from discrimination.
The Legal Team
Our legal team consists of ACLU Nebraska Legal Director Amy Miller and
Cooperating Attorney Bob Bartle of Bartle and Geier; Tamara Lange and James
Esseks of the ACLU Lesbian and Gay Rights Project, and David Buckel and
Brian Chase of Lambda Legal Defense and Education Fund.
End of the Case
On May 12, 2005, the United States District Court ruled in our favor,
holding the state constitutional amendment violates the US Constitution.
The state appealed this ruling to the Eighth Circuit
Court of Appeals. On July 14, 2006, a three judge panel of the 8th
Circuit granted the state's appeal, finding Initiative 416 did not violate
the Constitution. We asked the entire 8th Circuit Court of Appeals to
hear the appeal, but the court refused that motion, which ended the legal
battle. Sadly, the Amendment remains in the Nebraska Constitution, but
there is some positive news: the entire battle drew attention to the
inequity of laws for GLBT people and educated many Nebraskans about anti-gay
discrimination. The battle drew new allies to the continuing fight for
equality. The plaintiffs and people affected by this case have to
return to attempting other ways to help protect same sex families and their
children in the legislature, in the courts, and in our communities.
