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Gay-marriage opponents win 2 cases

Courts reinstate Neb. ban, won't block Tenn. vote

LINCOLN, Neb. -- Courts handed victories to gay-marriage opponents in two states yesterday, reinstating Nebraska's voter-approved ban on same-sex nuptials and throwing out an attempt to keep a proposed ban off the ballot in Tennessee.

In the Nebraska case, the US Court of Appeals for the Eighth Circuit overturned a judge's ruling last year that the ban was too broad and deprived gays and lesbians of participation in the political process, among other things.

Seventy percent of voters had approved the ban as a constitutional amendment in 2000.

It went further than similar bans in many states in that it also barred same-sex couples from many legal protections afforded to heterosexual couples. For example, the partners of gays and lesbians who work for the state are not entitled health insurance and other benefits.

New York-based Lambda and the Lesbian and Gay Project of the American Civil Liberties Union in Nebraska filed suit, arguing that the ban violated gay rights.

The court, however, ruled that the amendment ``and other laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States."

In Tennessee, the state Supreme Court dismissed a lawsuit filed by the ACLU that contended that the state failed to meet its own notification requirements for a ballot measure asking voters to ban gay marriage. The high court ruled unanimously yesterday that the ACLU didn't have standing to file the suit.

Tennessee had a law banning gay marriage, but lawmakers who supported the proposed amendment said they wanted a backup in case the law was overturned.

Similar steps have been taken in many of the other 44 states that have barred same-sex marriage through statute or constitutional amendment.

Only Massachusetts allows gay marriage, acquired through a ruling by the state's Supreme Judicial Court. Vermont and Connecticut allow same-sex civil unions that confer the same legal rights as heterosexual married couples.

But some Massachusetts lawmakers are trying to ban gay marriage, and the SJC ruled this week that legislative efforts to put a gay marriage ban on the state's 2008 ballot could move forward.

The top courts in two other states also dealt setbacks to gay-rights advocates last week: The New York Court of Appeals rejected a bid by same-sex couples to win marriage rights, and the Georgia Supreme Court reinstated a constitutional amendment banning gay marriage there.

David Buckel, senior staff attorney at Lambda Legal, said Nebraska's ban is ``the most extreme of all the anti gay family laws in the nation," and his group is considering whether to ask the appeals court to rehear the case. He said the court ignored the claims raised in the lawsuit.

``We did not sue about marriage; we sued because our clients were told it was a waste of time to try to get a domestic-partnership bill passed" in the Legislature," he said. ``Yet the court is reasoning as if what we asked for was the right to marry."

Nebraska's attorney general, Jon Bruning, countered that no one's freedom of expression or association was violated.

``Plaintiffs are free to petition state senators to place a constitutional amendment on the ballot," Bruning said. ``Plaintiffs are similarly free to begin an initiative process to place a constitutional amendment on the ballot, just as supporters . . . did."

Bruning and Nebraska's governor, Dave Heineman, were named as defendants in the suit filed by the ACLU. Heineman had no immediate reaction, his spokesman said.

James C. Dobson, chairman of the Focus on the Family organization, praised the court's decision in the Nebraska case.

``This ruling is a textbook example of how courts should discharge their duties to interpret laws, not make them," Dobson said. ``The judges showed respect for the will of the 70 percent of Nebraskans who voted six years ago to keep marriage defined as the union of one man and one woman, noting in their decision that they were `highly deferential' to those who approved the amendment."

In San Francisco, the state Court of Appeals this week was hearing arguments in six same-sex marriage cases. Four were filed by the city and lawyers for 20 couples seeking the right to wed, and two were brought by groups that want to maintain the status quo barring same-sex unions.

The California Legislature became the first lawmaking body in the nation to vote to legalize gay marriage, but Governor Arnold Schwarzenegger vetoed the measure, saying the issue should be left to voters.

Eighteen states have amended their constitutions to define marriage as limited to unions between a man and a woman.

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