More Decisions on Same-Sex Marriage Bans

Supporters of banning gay marriage won two major court rulings Friday, with a federal appeals court reinstating Nebraska's voter-approved ban on same-sex marriage and the Tennessee Supreme Court ruling that voters should have a say on the issue.

The United States Court of Appeals for the Eighth Circuit held that Nebraska's ban on same-sex marriage, which prohibits the state from recognizing same-sex domestic partnerships as well, does not violate Equal Protection nor does in constitute an illegal bill of attainder.  The petitioners, relying heavily on the Supreme Court's analysis in Romer v. Evans, argued that strict scrutiny was required because the constitutional amendment put same-sex couples in the position of being unable to access the political process to secure rights to a broad range of government benefits and rights.  The court of appeals rejected this novel argument and, finding that same-sex couples are not a protected class, applied rational basis scrutiny to the constitutional amendment.  At that level of scrutiny, the court found the amendment rationally related to the state's interest in steering procreation into marriage.  The court likewise rejected the bill of attainder argument, finding that the amendment did not rise to the level of punishment required to be a bill of attainder.

Citizens for Equal Protection v. Bruning, (July 14, 2006)(opinion on web)(last visited July 16, 2006 bgf)

The Tennessee case was an effort by the ACLU to enjoin the Secretary of State from placing a proposed amendment to the Tennessee Constitution on the November 7, 2006 ballot for a ratification vote. The Supreme Court affirmed the lower court’s decision dismissing the complaint on the basis that the ACLU lacked standing to bring the suit.
ACLU v. Darnell, (July 12, 2006)(opinion on web)(last visited July 16, 2006 bgf)