Nebraska Ban on Gay Marriage Held Unconstitutional

Federal Court Strikes Down Nebraska Law Banning Gay Marriage

Agreeing with the argument that the state’s constitutional ban on same-sex marriage was a violation of the provisions of the 14th Amendment of the U.S. Constitution, a federal district court in Nebraska struck down the provision, saying it illegally created a classification based on gender. Under well-established constitutional law, because the constitutional amendment was “discriminatory on its face,” it must be subjected to an intermediate level of scrutiny by the court. Such a level of review requires that the state demonstrate that the amendment serve an “important governmental objective.” The court held that it did not.

In the opinion of the court, it was irrelevant whether the discrimination violated the equal protection clause or the due process clause of the 14th Amendment—it amounted to discrimination based on gender. Constitutional experts say that, though this argument has not been the most frequent rationale in striking down same-sex laws and constitutional amendments, it may be the most effective one, and it appears to be gathering support among justices.

Here are the different legal theories that have been successfully used thus far to invalidate gay marriage bans:

• Banning same-sex marriage is an unconstitutional form of discrimination based on gender (the rationale used in Nebraska and Missouri)
• Prohibiting same-sex marriage illegally discriminates based on sexual orientation
• Bans on gay marriage violate a fundamental right to marriage pursuant to the due process clause of the 14th Amendment
• Laws banning gay marriage have no “rational basis,” the minimal requirement for laws that treat one person differently from another

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