Seven same-sex couples are challenging Nebraska’s gay marriage ban in federal court.
Both state and national chapters of the American Civil Liberties Union filed a lawsuit Monday on behalf of the couples claiming that the state’s constitutional ban on same-sex marriage is unlawfully discriminatory.
This could mean that Nebraska joins the growing list of states where gay marriage is legally recognized, now a majority in the U.S. Opponents, however, say this is a repeat case the ACLU has already lost.
Nebraska passed a constitutional amendment banning gay marriage in 2000. The ACLU has previously challenged the ban, losing the case in 2006.
In 2013, a same-sex couple filed a petition for divorce in Nebraska. The petition requested recognition for their out-of-state marriage, indirectly challenging the ban. Earlier this year, the Nebraska Supreme Court dismissed that case on the grounds that it did not have jurisdiction in this matter. Now the ban is being challenged again.
“The 8th Circuit Court of Appeals already upheld Nebraska’s marriage policy against the ACLU’s challenge in 2006,” Caleb Dalton, litigation counsel with Alliance Defending Freedom, told The Daily Caller News Foundation. “The Court affirmed Nebraska’s marriage policy, holding that ‘there is no constitutional right to same-sex marriage’ and thus, like the Supreme Court recognized in Windsor last year, states have the freedom to affirm marriage as one man and one woman. The ACLU’s attempt to re-litigate this already-decided issue should be dismissed.”
Nebraska’s constitution states: “Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.”
Sally and Susan Waters, two plaintiffs in the case, married in California in 2008 and moved to Nebraska in 2010, according to the ACLU. Sally was diagnosed with breast cancer in January 2013, which has now become terminal and raises concerns about the family’s finances.
Susan won’t be covered by Social Security survivor benefits, but the children will be according to the ACLU. Susan will have to pay inheritance tax on half of the property they share, including the family’s home.
“We have said publicly before God, our family and our friends that we love each other and are committed to one another and our children,” Sally Waters said in an ACLU press release. “At this moment, I want to spend time loving my children and my wife while knowing that should I die, they will be cared for. By not recognizing my family, Nebraska is making a difficult situation much more difficult emotionally and financially.”
Because Sally has terminal breast cancer, the attorneys will be filing for emergency relief which could speed up the case.
Dalton stressed that he did not want to diminish a person’s health concerns but said the use of these health issues to speed up cases is something the ACLU does regularly.
The 2006 marriage case in Nebraska was actually filed in 2001. Dalton said this case could move more quickly because of the file for emergency relief.
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