- The Washington Times - Friday, July 14, 2006

Opponents of same-sex “marriage” won two key legal victories yesterday, with the reinstatement of Nebraska’s voter-approved constitutional amendment banning such unions and a ruling that killed efforts to keep similar restrictions off the ballot in Tennessee in November.

The two decisions followed court rulings last week in two other states that were also setbacks for advocates of homosexual “marriage.” New York’s highest court said that state’s marriage laws are constitutional and that homosexual couples cannot “marry.” Georgia’s Supreme Court upheld that state’s voter-approved marriage definition, which prohibits same-sex “marriage.”

Earlier this week, the Massachusetts Supreme Judicial Court confirmed the legitimacy of a proposed constitutional amendment that would end same-sex “marriage” there. Massachusetts is the only state that allows it.

“We’re encouraged by these rulings, which indicate courts are applying brakes to runaway activism and that some rationality is returning,” said Tony Perkins, president of the Family Research Council.

In its decision yesterday, the 8th U.S. Circuit Court of Appeals held that the constitutional amendment overwhelmingly approved by Nebraska voters in 2000 and “other laws limiting the state-recognized institution to heterosexual couples are rationally related to legitimate state interests and, therefore, do not violate the Constitution of the United States.”

The appeals court overturned a 2005 opinion by a federal judge who determined the constitutional amendment — which prohibits same-sex couples from sharing health insurance and other benefits afforded heterosexual couples — violated the U.S. Constitution’s Equal Protection Clause.

The lower court had agreed with plaintiffs, including Lambda Legal Defense, the American Civil Liberties Union’s (ACLU) Lesbian & Gay Rights Project and some homosexuals living in Nebraska, who contended the constitutional amendment “deprives gays and lesbians of their First Amendment rights,” including their right to participate in the political process.

But the appeals court agreed with Nebraska Attorney General Jon C. Bruning, a defendant in the lawsuit, that the constitutional ban on same-sex “marriage” does not violate anyone’s freedom of speech or association. Nor does it infringe on constitutional provisions for equal protection, the court said.

In its opinion, the appeals court noted that Nebraska officials argued that laws defining marriage as the union of one man and one woman are “rationally related to the government interest in ‘steering procreation into marriage.’”

“The argument is based, in part, on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry,” the ruling said.

Forty-five states have either statutes or constitutional amendments banning same-sex “marriage.” Tennessee has such a law, but state legislators who support such a ban also want a constitutional amendment as backup in case the current law is overturned.

In a lawsuit filed in April 2005, the ACLU charged that the state of Tennessee failed to meet its own notification requirements for a Nov. 7 ballot measure that could amend the state constitution to bar “marriage” between persons of the same sex.

The plaintiffs said the marriage amendment had not been “published six months previous” to the 2004 election as required by the Tennessee Constitution and should not be on the ballot.

The Supreme Court of Tennessee, however, decided the “plaintiffs lack standing to bring this action” and dismissed the lawsuit.

Matt Foreman, executive director of the National Gay and Lesbian Task Force, said neither the Nebraska nor Tennessee ruling was unexpected.

The Tennessee decision was strictly technical, he said, while the Nebraska ruling “relied on the same irrational and homophobic arguments that came out of the New York decision to find there is a rational basis to deny gay couples the right to marry.”

While acknowledging “a lot of judicial setbacks” to same-sex “marriage,” Mr. Foreman ticked off legislative and judicial advances in at least a half-dozen other states.

“This is a long-term struggle, and there will be both setbacks and advances. But we are in it for the long haul,” he said in an interview.

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