LGBT rights in Nebraska
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.
|Status||Legal since 1978|
|Gender identity||Transgender people allowed to change gender following surgery|
|Discrimination protections||None statewide|
|Recognition of relationships||Same-sex marriage since 2015|
Legality of same-sex sexual activityEdit
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.
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 The law was repealed in 1969, having almost only being used on the "insane or mentally retarded".
All sodomy laws were repealed at the state level when a revised criminal code was enacted in June 1977, effective July 1, 1978. 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 No other state repealed its sodomy criminalization statute by such a veto override.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.
Recognition of same-sex relationshipsEdit
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 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 the Equal Protection and Due Process clauses of the United States Constitution.
Adoption and parentingEdit
Nebraska permits adoption by individuals. There are no explicit prohibitions on adoption by same-sex couples.
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.[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. 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. The Court compared the law to "a sign reading 'Whites Only' on the hiring-office door."
Nebraska law does not address discrimination on the basis of sexual orientation or gender identity.
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. The cities of Grand Island and Lincoln both prohibit discrimination on the basis of sexual orientation in public employment only. Bellevue has a similar policy that also includes gender identity.
Gender identity and expressionEdit
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.
Hate crime lawEdit
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.
|% 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%|
- 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".
- "Megan Hunt becomes first openly LGBTQ person elected to legislature" KMTV, November 8, 2018.
- The History of Sodomy Laws in the United States: Nebraska
- 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) Archived 2011-07-14 at the Wayback Machine
- Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (8th Cir. 2006)
- Human Rights Campaign: NebraskaAdoption Law Archived 2012-03-11 at the Wayback Machine, 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.
- Chavez, Nicole (April 8, 2017). "Nebraska ban on LGBT foster parents to end, court rules". CNN.
- Duggan, Joe; Hammel, Paul (August 7, 2015). "Judge strikes down Nebraska's ban on gay foster parents". Omaha World-Herald. Retrieved April 12, 2017.
- "Nebraska court rules to end ban on LGBT foster parents". WFXT. April 9, 2017.
- Human Rights Campaign: Nebraska Non-Discrimination Law Archived 2012-04-25 at the Wayback Machine, accessed April 11, 2011
- Nebraska bill to add LGBT workplace protections tabled for year
- LGBT workplace discrimination bill halted for now
- Nebraska senators reject ban on LGBT employee discrimination
- Omaha passes LGBT ordinance, accessed March 30, 2017
- Municipal Equality Index 2016
- BELLEVUE, NEBRASKA 2018 MUNICIPAL EQUALITY INDEX SCORECARD
- Nebraska Birth Certificate Laws
- Human Rights Campaign: Nebraska Hate Crimes Law Archived 2012-07-25 at the Wayback Machine, accessed April 11, 2011
- PRRI: American Values Atlas 2017