8th Circuit Restores Nebraska Marriage Amendment

The AP story by Kevin O’Hanlon is available on Yahoo. Additional coverage is available on Google News. Hat tip to How Appealing for providing a link to the opinion: Citizens for Equal Protection v. Bruning, No. 05-2604 (8th Cir. July 14, 2006).

ADF filed an amicus and provided funding for several amici in this case. Significant language in this opinion addresses the federal status of marriage. See, e.g., the excerpt copied below.
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In the nearly one hundred and fifty years since the Fourteenth Amendment was adopted, to our knowledge no Justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution. Indeed, in Baker v. Nelson, 409 U.S. 810 (1972), when faced with a Fourteenth Amendment challenge to a decision by the Supreme Court of Minnesota denying a marriage license to a same-sex couple, the United States Supreme Court dismissed “for want of a substantial federal question.” (Emphasis added.) There is good reason for this restraint. As Judge Posner has observed:

This is not to say that courts should refuse to recognize a constitutional right merely because to do so would make them unpopular. Constitutional rights are, after all, rights against the democratic majority. But public opinion is not irrelevant to the task of deciding whether a constitutional right exists. . . . If it is truly a new right, as a right to same-sex marriage would be . . . . [judges] will have to go beyond the technical legal materials of decision and consider moral, political, empirical, prudential, and institutional issues, including the public acceptability of a decision recognizing the new right. Richard A. Posner, Should There Be Homosexual Marriage? And If So, Who Should Decide?, 95 Mich. L. Rev. 1578, 1585 (1997)

. . .  We hold that § 29 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.