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Same-sex marriage has been legal in Nebraska since June 26, 2015, when the U.S. Supreme Court ruled in the case of Obergefell v. Hodges that the denial of marriage rights to same-sex couples violates the Fourteenth Amendment. Following the court ruling, Attorney General Doug Peterson announced that the state of Nebraska would comply and recognize same-sex marriages. [1]
In November 2000, Nebraska voters adopted Initiative Measure 416, a constitutional amendment defining marriage as the "union of a man and a woman" and prohibiting the recognition of same-sex relationships under any other name. [2] The measure passed with 70.10% in favour and 29.90% opposed. [3] The state has only restricted marriage rights for same-sex couples in its state constitution; it has never passed a measure to that effect in the form of a statute passed in the Nebraska Legislature. Nebraska extended hospital visitation rights to same-sex couples through a designated visitor statute. [4]
In January 2016, there were discussions in the Nebraska Legislature to repeal the defunct same-sex marriage ban from the State Constitution. Senator Burke Harr argued that the Constitution should be consistent with the law of the land regarding same-sex marriage. Such a change would require approval by voters. Two religious organizations opposed the measure, claiming it was "too costly" and that it would "only create more divisiveness". Senator Patty Pansing Brooks later said, "Enough hurt. Enough harm. Enough damage has been done by the religious institutions." [5] [6] Senator Matt Hansen also introduced bills to make all references to marriage gender-neutral in state statutes, though the bills failed to pass. [5] [6]
In January 2021, Senator Pansing Brooks presented a ballot measure to repeal the state's defunct same-sex marriage ban. [7] She argued that "putting the issue on the ballot would allow voters to show that public attitudes toward same-sex marriage have changed in Nebraska". The proposal was referred to the Judiciary Committee, which approved the measure on February 11 by a 5–2 vote, but it was not voted on before the State Legislature adjourned sine die on May 27, 2021. [8] A similar measure was proposed in 2023 by Senator Jen Day, but it also failed to pass before the end of the legislative session. [9]
In 2003, two LGBT advocacy organizations, Citizens for Equal Protection and the Nebraska Advocates for Justice and Equality, joined by the American Civil Liberties Union (ACLU) and also represented by Lambda Legal, filed suit in the U.S. District Court for the District of Nebraska challenging the constitutionality of Initiative Measure 416. District Court Judge Joseph Bataillon ruled in favour of the plaintiffs on May 12, 2005, overturning Initiative Measure 416 based on the Equal Protection Clause, the First Amendment, and the prohibition on bills of attainder contained in the Contract Clause. [10]
The state appealed the decision to the Eighth Circuit Court of Appeals and on July 14, 2006, in a unanimous opinion written by Chief Judge James B. Loken, the Eighth Court reversed the district court's decision on all three of its conclusions. [11] The plaintiffs' subsequent request for an Eighth Circuit rehearing en banc was denied and they elected to not file a petition for certiorari in the U.S. Supreme Court. [12] [13]
On November 17, 2014, the ACLU filed a lawsuit, originally Waters v. Heineman, in federal court on behalf of seven same-sex couples. [14] The plaintiffs sought to overturn Nebraska's same-sex marriage ban and to have their out-of-state marriages recognized. [15] The case became Waters v. Ricketts when Pete Ricketts succeeded Dave Heineman as governor in January 2015. On January 21, 2015, the state asked for proceedings to be stayed pending action by the U.S. Supreme Court in related same-sex marriage cases, [16] and on January 23 Senior Judge Joseph Bataillon cancelled a hearing he had scheduled for January 29. On January 27, he denied the state's request to suspend proceedings. [17] He held oral arguments on February 19. [18] On March 2, he ruled for the plaintiffs, setting March 9 as the effective date of his order. [19]
Attorney General Doug Peterson immediately announced that the state would appeal the ruling and asked the Eighth Circuit Court of Appeals to stay Judge Bataillon's order prohibiting enforcement of the state's same-sex marriage ban. [20] He requested a stay pending appeal the next day, [21] which the Eighth Circuit granted on March 6, while also scheduling oral arguments for May 12 alongside three other same-sex marriage cases. [22]
Following the decision of the U.S. Supreme Court in Obergefell v. Hodges on June 26, 2015, Attorney General Peterson notified the Eighth Circuit that the state would no longer enforce its same-sex marriage ban. [23] Same-sex couples began immediately marrying in Nebraska following the Supreme Court's ruling, with Kathy Pettersen and Beverly Reicks being the first same-sex couple to file marriage paperwork at the Douglas County Clerk's Office on June 26. [24] Barbara DiBernard and Judith Gibson were the first to wed in Lancaster County, which contains the capital city of Lincoln. [25] Susan and Sally Waters, plaintiffs in Waters, were issued a license on Friday, June 26 by the Douglas County Clerk, Tom Cavanaugh. [26]
Governor Ricketts issued a statement critical of the ruling but said the state would comply, "We will follow the law and respect the ruling outlined by the court." Attorney General Peterson said the court had "overstepped its proper role in our system of government". State tax officials quickly issued guidance for married same-sex couples, and the Department of Motor Vehicles started processing name changes for driver's licenses based on the marriage licenses of same-sex couples. [27] Most Nebraska counties began immediately issuing marriage licenses to same-sex couples, or announced their willingness to do so. Officials in Buffalo, Dakota and Phelps counties initially reported they would not be issuing such licenses until they received further guidance from the state. However, both Governor Ricketts and Attorney General Peterson had announced by June 29, 2015 that the state would comply with the court's ruling and those counties promptly followed that guidance. [28] The Sioux County Clerk, Michelle Zimmerman, was the only county clerk in Nebraska to expressly state she would not issue marriage licenses to same-sex couples, though the county's deputy clerk confirmed on July 11, 2015 that the office would process the marriage licenses of any same-sex couple who wishes to marry in the county. [29]
On July 1, 2015, the Eighth Circuit lifted the stay it had imposed on Judge Bataillon's order, allowing his prohibition on the enforcement of Nebraska's denial of marriage rights to same-sex couples to take effect. [30] On February 6, 2016, Judge Bataillon issued a permanent injunction striking down the state's defunct same-sex marriage ban. Though a formality, the injunction ordered state officials to treat same-sex couples the same as opposite-sex couples in everything from processing marriage licenses to issuing birth certificates, the latter something the state had previously attempted to ban same-sex couples from amending. [31]
The Law and Order Code of the Ponca Tribe of Nebraska states that the tribe must "ensure that couples of the same sex and couples of opposite sex have equal access to marriage". The change was decided by the Tribal Council on a meeting on August 26, 2018. As of 2021, this wording has changed to "ensure that couples of the same sex and couples of opposite sex have equal access to marriage and to the protections, responsibilities, and benefits that result from marriage." [32] During its monthly meeting in March 2022, two members of Tribal Council of the Winnebago Tribe of Nebraska proposed a motion to recognize same-sex marriages on the reservation. The motion was opposed by other council members who allegedly used homophobic language and called for LGBT people to be banned from the tribe. The motion to recognize same-sex marriages was voted down, with 4 of the 7 council members voting against. Following the vote, Tyler LaMere, a 17-year-old two-spirit tribal member, released a video on TikTok, which was viewed more than a million times, calling on tribal leaders to reconsider their decision. The social media campaign led to the Tribal Council reconsidering the decision during its April 11 meeting. Council member Isaac Smith, who had voted to ban same-sex marriage back in March, introduced a motion to reconsider that vote. It passed 5–0 with two abstentions. The council then voted to add provisions recognizing same-sex marriages to the tribal court code. "There was a real humbleness of the leadership to apologize to the relatives that they had offended.", said council member Victoria Kitcheyan. [33] [34]
Same-sex marriages validly performed in other jurisdictions, including in the state of Nebraska, are legally recognized on the reservation of the Sac and Fox Nation of Missouri in Kansas and Nebraska. [35] It is unclear if same-sex marriages are recognized on the reservation of the Iowa Tribe of Kansas and Nebraska as tribal officials have not publicly commented on the issue.
While there are no records of same-sex marriages as understood from a Western persepective being performed in Native American cultures, there is evidence for identities and behaviours that may be placed on the LGBT spectrum. Many of these cultures recognized two-spirit individuals who were born male but wore women's clothing and performed everyday household work and artistic handiwork which were regarded as belonging to the feminine sphere. [36] The Winnebago people have traditionally recognized two-spirit people, known in their language as teją́čowįga (pronounced [tedʒãꜜtʃowĩga] ). They were believed to have been blessed by the spirit of the Moon, and were "holy and highly respected for special gifts such as prophesy, healing, artistry, and excelling at women's tasks". Many teją́čowįga married cisgender men, without indication of polygyny. [36] The Ponca people refer to two-spirit people as míⁿxuga (pronounced [mĩꜜxuga] ). They were believed to have been "instructed by the Moon", and would sometimes take men as partners. [36]
In the Chiwere language, two-spirit people are called mihxóge (pronounced [mihxoꜜkɛ] ). "The mihxóge were respectfully treated as a special class of religious leaders. Among the late Baxoje, Jiwére-Ñút'achi elders, the mihxóge were still regarded with awe for their spiritual connection and consecrated role in harmony with the Holy Grandfather spirits. [...] They're half man, half woman. And they don't have (heterosexual) relationship(s). They do something (to fulfill needs) among themselves. [...] They're not crazy. They just got that born in them. Born in their nature." [37] Two-spirit people had "visions of female deities or the Moon that served to endorse their identity". Sauk two-spirit individuals, known as ayakwa (pronounced [ɑˈjɑkwɑ̥] ), also characterized their gender role change as "an unfortunate destiny which they cannot avoid, being supposed to be impelled to this course by a vision from the female spirit that resides in the Moon." They were sacred and honored annually with a dance in which only those men who had had sexual intercourse with an ayakwa were allowed to participate. [36]
| Poll source | Date(s) administered | Sample size | Margin of error | % support | % opposition | % no opinion |
|---|---|---|---|---|---|---|
| Public Religion Research Institute | March 11 – December 14, 2022 | ? | ? | 60% | 33% | 7% |
| Public Religion Research Institute | March 8 – November 9, 2021 | ? | ? | 58% | 40% | 2% |
| Public Religion Research Institute | January 7 – December 20, 2020 | 348 random telephone interviewees | ? | 69% | 31% | <0.5% |
| Public Religion Research Institute | April 5 – December 23, 2017 | 519 random telephone interviewees | ? | 54% | 33% | 13% |
| American Values Atlas/Public Religion Research Institute | May 18, 2016 – January 10, 2017 | 747 random telephone interviewees | ? | 61% | 27% | 12% |
| American Values Atlas/Public Religion Research Institute | April 29, 2015 – January 7, 2016 | 587 random telephone interviewees | ? | 49% | 43% | 8% |
| 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% |
Same-sex marriage has been legal in California since June 28, 2013. The U.S. state first issued marriage licenses to same-sex couples on June 16, 2008 as a result of the Supreme Court of California finding in the case of In re Marriage Cases that barring same-sex couples from marriage violated the Constitution of California. The issuance of such licenses was halted from November 5, 2008 through June 27, 2013 due to the passage of Proposition 8—a state constitutional amendment barring same-sex marriages. The granting of same-sex marriages recommenced following the U.S. Supreme Court's decision in Hollingsworth v. Perry, which restored the effect of a federal district court ruling that overturned Proposition 8 as unconstitutional.
Same-sex marriage has been legally recognized in Oregon since May 19, 2014, when Judge Michael J. McShane of the U.S. District Court for the District Court of Oregon ruled in Geiger v. Kitzhaber that Oregon's 2004 state constitutional amendment banning same-sex marriages discriminated on the basis of sexual orientation in violation of the Equal Protection Clause of the U.S. Constitution. A campaign that was then under way to win voter approval of a constitutional amendment legalizing same-sex marriage was suspended following the decision. In July 2015, Governor Kate Brown signed legislation codifying same-sex marriage in various Oregon statutes. The law change went into effect on January 1, 2016.
Nebraska Initiative 416 was a 2000 ballot initiative that amended the Nebraska Constitution to make it unconstitutional for the state to recognize or perform same-sex marriage, same-sex civil unions or domestic partnerships. The referendum was approved on November 7, 2000, by 70% of the voters. The initiative has since been struck down in federal court and same-sex marriage is now legally recognized in the state of Nebraska.
Same-sex marriage has been legal in Florida since January 6, 2015, as a result of a ruling in Brenner v. Scott from the U.S. District Court for the Northern District of Florida. The court ruled the state's same-sex marriage ban unconstitutional on August 21, 2014. The order was stayed temporarily. State attempts at extending the stay failed, with the U.S. Supreme Court denying further extension on December 19, 2014. In addition, a state court ruling in Pareto v. Ruvin allowed same-sex couples to obtain marriage licenses in Miami-Dade County on the afternoon of January 5, 2015. In another state case challenging the state's denial of marriage rights to same-sex couples, a Monroe County court in Huntsman v. Heavilin stayed enforcement of its decision pending appeal and the stay expired on January 6, 2015.
Same-sex marriage has been legally recognized in Wisconsin since October 6, 2014, upon the resolution of a lawsuit challenging the state's ban on same-sex marriage. On October 6, the U.S. Supreme Court refused to hear an appeal of an appellate court ruling in Wolf v. Walker that had found Wisconsin's ban on same-sex marriage unconstitutional. The appellate court issued its order prohibiting enforcement of the state's ban on same-sex marriage the next day and Wisconsin counties began issuing marriage licenses to same-sex couples immediately. Wisconsin had previously recognized domestic partnerships, which afforded limited legal rights to same-sex couples, from August 2009 until they were discontinued in April 2018.
Same-sex marriage has been legally recognized in Colorado since October 7, 2014. Colorado's state constitutional ban on same-sex marriage was struck down in state district court on July 9, 2014, and by the U.S. District Court for the District of Colorado on July 23, 2014. The Tenth Circuit Court of Appeals had already made similar rulings with respect to such bans in Utah on June 25 and Oklahoma on July 18, which are binding precedents on courts in Colorado. On October 6, 2014, the U.S. Supreme Court declined to hear the Tenth Circuit cases, and the Tenth Circuit lifted its stay. On October 7, 2014, the Colorado Supreme Court and the Tenth Circuit cleared the way for same-sex marriages to begin in Colorado.
Joseph Francis Bataillon is a senior United States district judge of the United States District Court for the District of Nebraska.
Same-sex marriage has been legal in Michigan since the U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015. The U.S. state of Michigan had previously banned the recognition of same-sex unions in any form after a popular vote added an amendment to the Constitution of Michigan in 2004. A statute enacted in 1996 also banned both the licensing of same-sex marriages and the recognition of same-sex marriages from other jurisdictions.
Same-sex marriage has been recognized in Montana since a federal district court ruled the state's ban on same-sex marriage unconstitutional on November 19, 2014. Montana had previously denied marriage rights to same-sex couples by statute since 1997 and in its State Constitution since 2004. The state appealed the ruling to the Ninth Circuit Court of Appeals, but before that court could hear the case, the U.S. Supreme Court struck down all same-sex marriage bans in the country in Obergefell v. Hodges, mooting any remaining appeals.
Same-sex marriage has been legal in Louisiana since the U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015. The court held that the denial of marriage rights to same-sex couples is unconstitutional, invalidating Louisiana's ban on same-sex marriage. The ruling clarified conflicting court rulings on whether state officials are obligated to license same-sex marriages. Governor Bobby Jindal confirmed on June 28 that Louisiana would comply with the ruling once the Fifth Circuit Court of Appeals reversed its decision in a Louisiana case, which the Fifth Circuit did on July 1. Jindal then said the state would not comply with the ruling until the U.S. District Court for the Eastern District of Louisiana reversed its judgment, which it did on July 2. All parishes now issue marriage licenses in accordance with federal law.
Citizens for Equal Protection v. Bruning, 455 F.3d 859, was a federal lawsuit filed in the United States District Court for the District of Nebraska and decided on appeal by the United States Court of Appeals for the Eighth Circuit. It challenged the federal constitutionality of Nebraska Initiative Measure 416, a 2000 ballot initiative that amended the Nebraska Constitution to prohibit the recognition of same-sex marriages, civil unions, and other same-sex relationships.
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, and same-sex marriage has been recognized since June 2015 as a result of Obergefell v. Hodges. The state prohibits discrimination on account of sexual orientation and gender identity in employment and housing following the U.S. Supreme Court's ruling in Bostock v. Clayton County and a subsequent decision of the Nebraska Equal Opportunity Commission. In addition, the state's largest city, Omaha, has enacted protections in public accommodations.
Same-sex marriage has been legally recognized in Idaho since October 15, 2014. In May 2014, the U.S. District Court for the District of Idaho in the case of Latta v. Otter found Idaho's statutory and state constitutional bans on same-sex marriage unconstitutional, but enforcement of that ruling was stayed pending appeal. The Ninth Circuit Court of Appeals affirmed that ruling on October 7, 2014, though the U.S. Supreme Court issued a stay of the ruling, which was not lifted until October 15, 2014.
Same-sex marriage has been legal in South Dakota since June 26, 2015 when the U.S. Supreme Court ruled in Obergefell v. Hodges that the U.S. Constitution guarantees same-sex couples the right to marry. Attorney General Marty Jackley issued a statement critical of the ruling but said South Dakota is obligated to comply and the state would recognize same-sex marriages.
Same-sex marriage became legal in Kansas following the U.S. Supreme Court's decision in Obergefell v. Hodges on June 26, 2015, which found the denial of marriage rights to same-sex couples unconstitutional. By June 30, all 31 judicial districts and all 105 Kansas counties were issuing marriage licenses to same-sex couples or had agreed to do so. Kansas state agencies initially delayed recognition of same-sex marriages for purposes including but not limited to changing names, ascribing health benefits and filing joint tax returns, but began doing so on July 6.
Same-sex marriage has been legal in Oklahoma since October 6, 2014, following the resolution of a lawsuit challenging the state's ban on same-sex marriage. On that day, following the U.S. Supreme Court's refusal to review Bishop v. Smith, a case that had found the ban unconstitutional, the Tenth Circuit Court of Appeals ordered Oklahoma to recognize same-sex marriages. On January 14, 2014, Judge Terence C. Kern of the U.S. District Court for the Northern District of Oklahoma declared the state's statutory and constitutional same-sex marriage bans unconstitutional. The case, Bishop v. Smith, was stayed pending appeal. On July 18, 2014, a panel of the Tenth Circuit upheld Kern's ruling overturning Oklahoma's same-sex marriage ban. However, the panel put its ruling on hold pending disposition of a petition for certiorari by the U.S. Supreme Court. On October 6, 2014, the U.S. Supreme Court rejected the request for review, leaving the Tenth Circuit Court's ruling in place. State officials responded by implementing the Tenth Circuit's ruling, recognizing same-sex marriage in the state.
Same-sex marriage has been legal in Texas since the U.S. Supreme Court's ruling in Obergefell v. Hodges on June 26, 2015. Previously, the U.S. state of Texas had banned same-sex marriage both by statute and in its State Constitution. On February 26, 2014, Judge Orlando Luis Garcia of the U.S. District Court for the Western District of Texas found that Texas's ban on same-sex marriages was unconstitutional. On April 22, 2014, a state court came to the same conclusion. Both cases were appealed. The district court's decision was appealed to the Fifth Circuit Court of Appeals, but before that court could issue a ruling, the U.S. Supreme Court struck down all same-sex marriage bans in the United States in Obergefell on June 26, 2015. Within a few months of the court ruling, all counties had started issuing marriage licenses to same-sex couples, except for Irion County, which announced in 2020 that it would begin issuing licenses to same-sex couples, making it the last county in the United States to comply.
Same-sex marriage has been legal in Missouri since the U.S. Supreme Court's landmark ruling in Obergefell v. Hodges, which struck down state bans on marriages between two people of the same sex on June 26, 2015. Prior to the court ruling, the state recognized same-sex marriages from other jurisdictions pursuant to a state court ruling in October 2014, and certain jurisdictions of the state performed same-sex marriage despite a statewide ban.
Same-sex marriage has been legal in Arkansas since the U.S. Supreme Court's landmark decision in Obergefell v. Hodges on June 26, 2015, in which the court struck down same-sex marriage bans nationwide. Prior to this, same-sex marriage in Arkansas was briefly legal for a period beginning on May 9, 2014, as a result of a ruling by Sixth Judicial Circuit Judge Chris Piazza striking down the state's constitutional and statutory bans on same-sex marriage as violating the U.S. Constitution. Approximately 541 same-sex couples received marriage licenses in several counties before the Arkansas Supreme Court stayed his ruling pending appeal on May 16, 2014.
In the United States, the history of same-sex marriage dates from the early 1940s, when the first lawsuits seeking legal recognition of same-sex relationships brought the question of civil marriage rights and benefits for same-sex couples to public attention though they proved unsuccessful. However marriage wasn't a request for the LGBTQ movement until the Second National March on Washington for Lesbian and Gay Rights in Washington (1987). The subject became increasingly prominent in U.S. politics following the 1993 Hawaii Supreme Court decision in Baehr v. Miike that suggested the possibility that the state's prohibition might be unconstitutional. That decision was met by actions at both the federal and state level to restrict marriage to male-female couples, notably the enactment at the federal level of the Defense of Marriage Act.
