LGBT rights in Nebraska

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LGBT rights in Nebraska
Nebraska (US)
Same-sex sexual activity legal? Legal since 1978
Discrimination protections No
Family rights
Recognition of
relationships
No
Restrictions:
Same-sex marriage, civil unions and domestic partnerships are banned by the state constitution

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Nebraska face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Nebraska. Same-sex couples and families headed by same-sex couples do not have the same protections as opposite-sex couples.

Laws against homosexuality[edit]

All sodomy laws were repealed at the state level when a revised criminal code was enacted in June 1977, effective July 1, 1978.[1][2] The state's unicameral legislature accomplished the repeal by overriding the veto of the original legislation by Governor J. James Exon by the minimum margin, 32 to 15. No other state repealed its sodomy criminalization statute by such a veto override.

The extent to which the state's anti-sodomy statute was enforced is unclear; Nebraska has no published sodomy cases during the 1950s or 1960s. Like many other states, Nebraska enacted a "psychopathic offender" law in the years after World War II. The Nebraska Bar Association objected when that law was revised to cover a first offense. A study showed that 7% of commitments under the law were for consenting adult gay men.[3]

Recognition of same-sex relationships[edit]

Nebraska voters adopted a constitutional amendment in November 2000 that defined marriage as the union of a man and a woman and prohibited the recognition of same-sex relationships under any other name.[4]

A federal court challenge to the constitutional amendment, Citizens for Equal Protection v. Bruning, won in the U.S. District Court in 2005,[5] but lost in the Eighth Circuit Court of Appeals in 2006.[6] Opponents of the constitutional amendment did not seek review of that decision by the U.S. Supreme Court.[7]

Nebraska has extended hospital visitation rights to same-sex couples through a designated visitor statute.[8]

On August 30, 2013, the Lancaster County District Court refused to grant a divorce to two women who married in Iowa in 2009. Bonnie Nichols filed an appeal with the state appellate court. In March 2014, the Nebraska Supreme Court accepted a petition to hear the case, Nichols v. Nichols,[9] but in June dismissed it as premature for procedural reasons.[10]

Waters v. Ricketts[edit]

The ACLU filed a lawsuit, originally Waters v. Heineman, in federal court on November 17, 2014, on behalf of seven same-sex couples.[11] The plaintiffs are seeking to overturn the Nebraska same-sex marriage ban and to have their out-of-state marriages recognized.[12] Pete Ricketts succeeded Dave Heineman as Governor of Nebraska in January 2015. On January 21, 2015, the state asked for proceedings to be stayed pending action by the U.S. Supreme Court in same-sex marriage cases,[13] and on January 23 Senior Judge Joseph F. Bataillon cancelled a hearing he had scheduled for January 29. On January 27, he denied the state's request to suspend proceedings.[14] He held oral argument on February 19.[15] On March 2, he ruled for the plaintiffs, setting March 9 as the effective date of his order. Nebraska Attorney General Doug Peterson immediately announced the state would appeal the ruling and ask the Eighth Circuit Court of Appeals to stay Bataillon's order prohibiting enforcement of the state's same-sex marriage ban.[16] He requested a stay pending appeal the next day,[17] which the Eighth Circuit granted on March 6 while also scheduling oral argument for May 12 alongside three other same-sex marriage cases.[18]

Adoption and parenting[edit]

Nebraska permits adoption by individuals. There are no explicit prohibitions on adoption by same-sex couples. Second-parent adoptions by one party to a same-sex couple terminates the parental rights of the other party.[19]

On August 27, 2013, three same-sex couples filed a lawsuit against the state seeking the right to serve as foster and adoptive parents. It claimed that the state's policy against allowing two unrelated adults to adopt has been consistently enforced only against same-sex couples.[20]

Discrimination protection[edit]

Map of Nebraska counties and cities that have sexual orientation and/or gender identity anti–employment discrimination ordinances
  Sexual orientation and gender identity with anti–employment discrimination ordinance
  Sexual orientation with anti–employment discrimination ordinance
  Sexual orientation in public employment
  Does not protect sexual orientation and gender identity in employment

No provision of Nebraska law explicitly addresses discrimination on the bases of sexual orientation or gender identity.[21]

Hate crime laws[edit]

Nebraska's hate crimes law covers hate crimes based on sexual orientation but not those based on gender identity.[22]

Public opinion[edit]

Public opinion for same-sex marriage in Nebraska
Poll source Date(s)
administered
Sample
size
Margin of
error
 % support  % opposition  % no opinion
New York Times/CBS News/YouGov September 20-October 1, 2014 721 likely voters ± 3.9% 40% 46% 14%
Public Policy Polling September 30-October 2, 2011 739 voters ± 3.6% 36% 54% 10%
Greenberg Quinlan Rosner Research August 2-4, 2011 305 adults ± 4% 42% 51% 12%

See also[edit]

References[edit]

  1. ^ William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (NY: Penguin Group, 2008), 201n, available online, accessed April 10, 2010
  2. ^ Laws of Nebraska 1977, page 88, enacted June 1, 1977, effective July 1, 1978
  3. ^ [1]
  4. ^ David Orgon Coolidge, "Evangelicals and the Same-Sex 'Marriage' Debate," in Michael Cromartie, ed., A Public Faith: Evangelicals and Civic Engagement (Washington, DC: Ethics and Public Policy Center, 2003), 98-99, available online, accessed April 11, 2011
  5. ^ Omaha World-Herald: Citizens for Equal Protection v. Bruning, May 12, 2005 , accessed April 11, 2011
  6. ^ U.S. Court of Appeals for the Eighth Circuit: Citizens for Equal Protection v. Bruning, July 14, 2006, accessed April 11, 2011
  7. ^ Pierceson, Jason (2014). Same-Sex Marriage in the United States: The Road to the Supreme Court and Beyond. Rowman & Littlefield Publishers. p. 213. Retrieved July 25, 2014. 
  8. ^ "Hospital Visitation Rights" (PDF). Hrc.org. Retrieved 2013-12-05. 
  9. ^ Bergin, Nicholas (March 28, 2014). "Same-sex couple asks Nebraska court to allow divorce". Journal Star. Retrieved April 1, 2014. 
  10. ^ Stoddard, Martha; Hammel, Paul (June 13, 2014). "Nebraska Supreme Court judges say appeal premature in same-sex marriage case". Omaha World-Herald. Retrieved July 25, 2014. 
  11. ^ Pluhacek, Zach (November 17, 2014). "7 couples sue over Nebraska’s gay marriage ban". Lincoln Journal Star. Retrieved November 17, 2014. 
  12. ^ "ACLU Files Lawsuit - Seeks Freedom to Marry for Nebraskans". ACLU Nebraska. Retrieved November 17, 2014. 
  13. ^ "Motion to Stay Proceedings". Scribd.com. U.S. District Court for Nebraska. Retrieved January 21, 2015. 
  14. ^ "Memo and Order denying state's request to stay proceedings". Scribd.com. U.S. District Court for Nebraska. Retrieved January 27, 2015. 
  15. ^ Tysver, Robynn (February 19, 2015). "No decision today on Nebraska's gay marriage ban". Omaha World-Herald. Retrieved February 19, 2015. 
  16. ^ Geidner, Chris (March 2, 2015). "Nebraska Same-Sex Marriage Ban Unconstitutional, Federal Judge Rules". BuzzFeed News. Retrieved March 2, 2015. 
  17. ^ Johnson, Chris (March 2, 2015). "Court strikes down Nebraska's ban on same-sex marriage". Washington Blade. Retrieved March 3, 2015. 
  18. ^ "Stay Granted". Scribd.com. Eighth Circuit Court of Appeals. Retrieved March 5, 2015. 
  19. ^ Human Rights Campaign: NebraskaAdoption Law, accessed April 11, 2011
  20. ^ O'Brien, Brendan (August 27, 2013). "Couples challenge Nebraska ban on gay adoptive and foster parents". Reuters. Retrieved August 29, 2013. 
  21. ^ Human Rights Campaign: Nebraska Non-Discrimination Law, accessed April 11, 2011
  22. ^ Human Rights Campaign: Nebraska Hate Crimes Law, accessed April 11, 2011

External links[edit]