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LGBT rights in Nebraska

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LGBT rights in Nebraska
Nebraska (US)
StatusLegal since 1978
Gender identityTransgender people allowed to change gender following surgery
Discrimination protectionsNone statewide
Family rights
Recognition of relationshipsSame-sex marriage since 2015

Lesbian, gay, bisexual, and transgender (LGBT) persons in the U.S. state of Nebraska may face some legal challenges not experienced by non-LGBT residents. Same-sex sexual activity is legal in Nebraska, as is same-sex marriage. Discrimination on the basis of sexual orientation and gender identity is not banned statewide, though the state's largest city, Omaha, has enacted provisions banning such discrimination.

In 2018, Senator Megan Hunt became the first openly LGBT person elected to the Nebraska Legislature.[1]

Legality of same-sex sexual activity

Prior to European settlement of Nebraska, there were no known social or legal punishments for engaging in homosexual activity. Among several Native American tribes, customs of "two-spirit" individuals existed, where male-bodied or female-bodied people would dress, act and live as the opposite gender, as well as perform tasks associated with the opposite gender. Such individuals are known as mix'uga in the Omaha-Ponca language, spoken by the Ponca and Omaha peoples. The Native Americans did not share the typical Western views of gender and sexuality.

In 1858, a few years after the creation of the Nebraska Territory, a prohibition on sodomy ("crime against nature"), whether heterosexual or homosexual, was passed into law. Punishment varied between one year to life imprisonment. In the 1910 case of Kinnan v. State, the Nebraska Supreme Court unanimously ruled that fellatio (oral sex) was not a violation of the sodomy statute. In response, the Nebraska Legislature revised certain parts of the law in 1913, outlawing fellatio and reducing the maximum penalty for sodomy to 20 years in jail.[2]

In 1929, Nebraska amended its sterilization law to make it applicable to state inmates who were "feeble-minded, insane, habitual criminals, moral degenerates or sexual perverts". This law was upheld by the state Supreme Court in In Re Clayton in 1931. By 1934, 276 people had been sterilized. The law was repealed in 1969, having almost only being used on the "insane or mentally retarded".[2]

All sodomy laws were repealed at the state level when a revised criminal code was enacted in June 1977, effective July 1, 1978.[3][4] The unicameral Nebraska Legislature accomplished the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.[2]

Recognition of same-sex relationships

Main article: Same-sex marriage in Nebraska

Same-sex marriage

Same-sex marriage has been legal in the state of Nebraska since June 26, 2015, when the U.S. Supreme Court ruled in Obergefell v. Hodges that the denial of marriage rights to same-sex couples is unconstitutional. That same day, Attorney General of Nebraska Doug Peterson said in a statement that "Recognizing the rule of law, the State of Nebraska will compl with the ruling of the United States Supreme Court in Obergefell. Nebraska officials will not enforce any Nebraska laws that are contrary to the United States Supreme Court's decision in Obergefell."[5]

Kathy Pettersen and Beverly Reicks were the first same-sex couple to file marriage paperwork at the Douglas County Clerk's Office on June 26, 2015.[6]

History

Nebraska is one of a handful of states to have banned same-sex marriage in its state Constitution but not in the form of a legislative statute. Voters adopted, by a 70% to 30% margin, a constitutional amendment in November 2000 that defined marriage as the union of a man and a woman.[7] Following the initiative, Nebraska extended hospital visitation rights to same-sex couples through a designated visitor statute.[8]

There have been two significant lawsuits related to same-sex marriage in Nebraska. In 2005/06, in the matter of Citizens for Equal Protection v. Bruning, same-sex couple plaintiffs were successful in the United States District Court for the District of Nebraska having the state's constitutional ban of same-sex marriage struck down.[9] However, an appeal by the state to the United States Court of Appeals for the Eighth Circuit reversed that ruling in 2006.[10]

Following the U.S Supreme Court's ruling in United States v. Windsor (2013), state bans on same-sex marriage came under enhanced judicial scrutiny. In the matter of Waters v. Ricketts (2015), the U.S District Court for the District of Nebraska again struck down the state's constitutional ban on same-sex marriage. The decision of the district court was stayed until the Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015, which struck down all state bans on same-sex marriage under the Equal Protection and Due Process clauses of the United States Constitution.

Adoption and parenting

Nebraska permits adoption by individuals. There are no explicit prohibitions on adoption by same-sex couples.[11]

On August 27, 2013, three same-sex couples filed a lawsuit in state court seeking the right to serve as foster and adoptive parents. They claimed that the state's refusal to allow two unmarried adults or two homosexuals to adopt has been consistently enforced only against same-sex couples.[12][a] Ruling in Stewart v. Heineman, Lancaster County District Judge John Colborn ruled for the plaintiffs on August 5, 2015. He wrote: "Defendants have not argued, nor have they identified, any legitimate government interest to justify treating gay and lesbian couples differently than heterosexual individuals and heterosexual couples" in reviewing applications for foster and adoptive parents.[14] The state appealed the ruling. In April 2017, the Nebraska Supreme Court upheld that decision and struck down the state's ban on same-sex couples becoming foster parents.[15] The Court compared the law to "a sign reading 'Whites Only' on the hiring-office door."[13]

Discrimination protections

Further information: LGBT employment discrimination in the United States
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 and gender identity in public employment
  Sexual orientation in public employment
  Does not protect sexual orientation and gender identity in employment

Nebraska law does not address discrimination on the basis of sexual orientation or gender identity.[16]

Bills to ban discrimination based on sexual orientation and gender identity have been introduced in the Nebraska Legislature in recent years,[17][18] but all have been rejected.[19]

As of April 2017, only Omaha has an ordinance, in effect since 2012, that prohibits discrimination on the basis of sexual orientation and gender identity in both public and private sectors with respect to employment and public accommodations.[20] The cities of Grand Island and Lincoln both prohibit discrimination on the basis of sexual orientation in public employment only.[21] Bellevue has a similar policy that also includes gender identity.[22]

Gender identity and expression

Transgender people in Nebraska are allowed to change their legal gender on their birth certificates. In order to do so, they must receive a notarized affidavit from the physician that performed sex reassignment surgery on them and a certified copy of an order changing their name.[23]

Hate crime law

Nebraska's hate crime law covers hate crimes based on sexual orientation but not those based on gender identity.[24]

Public opinion

A 2017 Public Religion Research Institute (PRRI) opinion poll found that 54% of Nebraska residents supported same-sex marriage, while 33% opposed it and 13% were unsure. Additionally, 66% supported an anti-discrimination law covering sexual orientation and gender identity. 21% were opposed.[25]

Public opinion for LGBT anti-discrimination laws in Nebraska
Poll source Date(s)
administered 		Sample
size 		Margin of
error 		% support % opposition % no opinion
Public Religion Research Institute January 3-December 30, 2018 435 ? 65% 25% 10%
Public Religion Research Institute April 5-December 23, 2017 519 ? 66% 21% 13%
Public Religion Research Institute April 29, 2015-January 7, 2016 587 ? 65% 29% 6%

Notes

  1. ^ The policy was established in a 1995 memo authored by the head of the state Department of Health and Human Services that said: "It is my decision that effective immediately, it is the policy of the Department of Social Service that children will not be placed in the homes of persons who identify themselves as homosexuals. This policy also applies to the area of foster home licensure in that, effective immediately, no foster home license shall be issued to persons who identify themselves as homosexual".[13]

See also

References

  1. ^ "Megan Hunt becomes first openly LGBTQ person elected to legislature" KMTV, November 8, 2018.
  2. ^ a b c The History of Sodomy Laws in the United States: Nebraska
  3. ^ William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (NY: Penguin Group, 2008), 201n, available online, accessed April 10, 2010
  4. ^ Laws of Nebraska 1977, page 88, enacted June 1, 1977, effective July 1, 1978
  5. ^ "Office of Nebraska AG: Response to U.S. Supreme Court Ruling on Marriage". Nebraska Attorney General. June 26, 2015.
  6. ^ "Heartland Response To Gay Marriage Ruling Is Quick". WOWT NBC Omaha. June 26, 2015.
  7. ^ 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
  8. ^ "Nebraska: Marriage Equality facts". Marriage Equality USA.
  9. ^ Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (D.Neb. 2005) Archived 2011-07-14 at the Wayback Machine
  10. ^ Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (8th Cir. 2006)
  11. ^ Human Rights Campaign: NebraskaAdoption Law Archived 2012-03-11 at the Wayback Machine, accessed April 11, 2011
  12. ^ O'Brien, Brendan (August 27, 2013). "Couples challenge Nebraska ban on gay adoptive and foster parents". Reuters. Retrieved August 29, 2013.
  13. ^ a b Chavez, Nicole (April 8, 2017). "Nebraska ban on LGBT foster parents to end, court rules". CNN.
  14. ^ Duggan, Joe; Hammel, Paul (August 7, 2015). "Judge strikes down Nebraska's ban on gay foster parents". Omaha World-Herald. Retrieved April 12, 2017.
  15. ^ "Nebraska court rules to end ban on LGBT foster parents". WFXT. April 9, 2017.
  16. ^ Human Rights Campaign: Nebraska Non-Discrimination Law Archived 2012-04-25 at the Wayback Machine, accessed April 11, 2011
  17. ^ Nebraska bill to add LGBT workplace protections tabled for year
  18. ^ LGBT workplace discrimination bill halted for now
  19. ^ Nebraska senators reject ban on LGBT employee discrimination
  20. ^ Omaha passes LGBT ordinance, accessed March 30, 2017
  21. ^ Municipal Equality Index 2016
  22. ^ BELLEVUE, NEBRASKA 2018 MUNICIPAL EQUALITY INDEX SCORECARD
  23. ^ Nebraska Birth Certificate Laws
  24. ^ Human Rights Campaign: Nebraska Hate Crimes Law Archived 2012-07-25 at the Wayback Machine, accessed April 11, 2011
  25. ^ PRRI: American Values Atlas 2017
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