LGBT rights in Nebraska
|LGBT rights in Nebraska|
|Same-sex sexual activity legal?||Legal since 1978|
|Same-sex marriage since June 26, 2015|
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, as is same-sex marriage. Same-sex couples and families headed by same-sex couples do not have the same protections as opposite-sex couples.
Laws against homosexuality
All sodomy laws were repealed at the state level when a revised criminal code was enacted in June 1977, effective July 1, 1978. 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 No other state repealed its sodomy criminalization statute by such a veto override.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.
Recognition of same-sex relationships
Same-sex marriage has been legal in the state of Nebraska since June 26, 2015, when the U.S. Supreme Court decision in Obergefell v. Hodges ruled the denial of marriage rights to same-sex couples 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 comply 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."
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. Following the initiative, Nebraska extended hospital visitation rights to same-sex couples through a designated visitor statute.
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. However an appeal by the state to the United States Court of Appeals for the Eighth Circuit reversed that ruling in 2006.
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 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. Second-parent adoptions by one party to a same-sex couple terminates the parental rights of the other party.
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, Memo 1-95, against allowing two unmarried adults and homosexuals to adopt has been consistently enforced only against same-sex couples. The court struck down the ban on August 5, 2015.
No provision of Nebraska law explicitly addresses discrimination on the bases of sexual orientation or gender identity.
Hate crime laws
Nebraska's hate crimes law covers hate crimes based on sexual orientation but not those based on gender identity.
- William N. Eskridge, Dishonorable Passions: Sodomy Laws in America, 1861-2003 (NY: Penguin Group, 2008), 201n, available online, accessed April 10, 2010
- Laws of Nebraska 1977, page 88, enacted June 1, 1977, effective July 1, 1978
- "Office of Nebraska AG: Response to U.S. Supreme Court Ruling on Marriage". Nebraska Attorney General. June 26, 2015.
- "Heartland Response To Gay Marriage Ruling Is Quick". WOWT NBC Omaha. June 26, 2015.
- 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
- "Nebraska: Marriage Equality facts". Marriage Equality USA.
- Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (D.Neb. 2005)
- Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (8th Cir. 2006)
- Human Rights Campaign: NebraskaAdoption Law, accessed April 11, 2011
- O'Brien, Brendan (August 27, 2013). "Couples challenge Nebraska ban on gay adoptive and foster parents". Reuters. Retrieved August 29, 2013.
- Stewart v. Heineman (2015)
- Joe Duggan & Paul Hammel (7 August 2015). "Judge strikes down Nebraska's ban on gay foster parents".
- Human Rights Campaign: Nebraska Non-Discrimination Law, accessed April 11, 2011
- Human Rights Campaign: Nebraska Hate Crimes Law, accessed April 11, 2011