After a historic ruling last week by the U.S. Supreme Court, friends as well as foes of same-sex marriage in Nebraska believe the state’s ban eventually will be challenged.
However, no one knows when or how.
The most likely avenue for a challenge rests with the courts, with some gay-rights activists saying that some of the same arguments used in the majority opinion issued by the U.S. Supreme Court to strike down a federal same-sex marriage ban could be used to challenge state bans, including Nebraska’s.
Another avenue could be a statewide petition drive, but few gay-rights advocates appear eager to gather signatures — especially in the conservative reaches of the state.
It would take about 115,000 signatures gathered from at least 38 of the state’s 93 counties to get a petition on the 2014 ballot.
“It’s just a monumental task,” said Michael Gordon, a spokesman for Citizens for Equal Protection and a longtime advocate for same-sex marriage. “The petition process is huge and awful, and I think the ballot initiative process is overwhelming.”
Nebraska is one of 29 states with a same-sex marriage ban. And it has one of the most restrictive laws, banning not only same-sex marriages but civil unions and domestic partnerships as well.
The measure was passed in 2000, with more than 70 percent of the vote.
On Wednesday, gay-rights supporters celebrated after a narrowly divided Supreme Court struck down a federal law that prohibited legally married same-sex couples from qualifying for federal benefits, such as Social Security survivor benefits. The court ruled that the federal Defense of Marriage Act, or DOMA, was essentially intended to “demean” legally married same-sex couples.
The court also issued a ruling that essentially allowed same-sex marriage to resume in California.
Shortly after the rulings, national gay-rights groups launched an ambitious plan to bring same-sex marriage to all 50 states in five years. The plan is to fight same-sex marriage bans on a state-by-state basis, either through legislatures, the initiative process or state courts. Once they have a “critical mass” of states allowing same-sex marriage, they will attempt to return to the U.S. Supreme Court and seek a nationwide ruling for all 50 states.
The Supreme Court’s 1967 ruling legalizing interracial marriage nationwide came only after 34 states had already made it legal.
“The strategy has always been to secure a critical mass of states and a critical mass of public opinion … and, with that climate, engage the Supreme Court,” Evan Wolfson, head of Freedom to Marry, told the Los Angeles Times last week.
It is believed that the first states to be targeted in this five-year strategy will be political swing states. Conservative Midwestern states such as Nebraska will not be high on the list. Those that will be include Illinois, New Jersey, Oregon and Hawaii.
One Nebraska opponent of same-sex marriage, Al Riskowski, said he and others have been warned by national groups that Nebraska’s ban eventually will be challenged.
Riskowski is the executive director of the Nebraska Family Council, one of the organizations that led the charge for the same-sex marriage amendment in 2000.
“I don’t believe there is any doubt, across the country, we’re going to see attempts to overturn state-passed DOMAs. They’re going to test the extent of this ruling,” Riskowski said.
But, he said, some of the reasoning in the Supreme Court’s ruling on the federal DOMA gave him hope. The high court said Congress had overstepped its bounds by attempting to define marriage — a power typically reserved for states.
Riskowski argued that the Supreme Court essentially acknowledged the right of each state to either embrace or reject same-sex marriages.
“It seems on the surface that it’s still left with the states to determine the definition of marriage,” Riskowski said.
Others believe the court’s opinion could be used to strike down state bans.
In the opinion, the justices appeared to indicate that the federal ban violated a same-sex couple’s right to equal protection under the law and that such a law was motivated simply to deprive a distinct class of citizens the “dignity” of marriage.
“There are a lot of different ways we might be able to skin this cat,” said Shelley Kiel, a former state senator from Omaha who is now involved with Citizens for Equal Protection. “And quite possibly to challenge this with the language the Supreme Court used to overturn DOMA.”
At least one U.S. Supreme Court justice seems to agree with that interpretation.
Justice Antonin Scalia, in his dissent on the DOMA ruling, said his colleagues had paved the way for a future ruling that would declare all state bans unconstitutional. In fact, he predicted, the “second state-law shoe” could drop as early as the court’s next term.
It was a thought Scalia did not appear to relish. He argued that the same-sex rights battle should be fought in the political arena.
“Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides,” Scalia wrote. “Few public controversies will ever demonstrate so vividly what our Framers gave us … a system of government that permits us to rule ourselves.”
Others, including Michael Gordon in Nebraska, argued that the courts were the appropriate venue to decide civil rights. No one should have to ask his neighbor for the right to marry the person he loves, Gordon said, or the right to protect their children within a stable, legal relationship.
“We have said over and over again, civil rights should not be voted on,” Gordon said.
He also noted it would be difficult and expensive to launch a petition drive. In recent years, no successful petition drive has been mounted without the use of a professional service to gather the signatures — a process that could cost $3 to $4 a signature.
And it’s hard to fathom a volunteer effort being successful. In fact, the last time a successful petition drive was launched entirely with volunteers in Nebraska was in 2000.
It was the petition to ban same-sex marriage.