Emily K. Baxter


In November of 2000, Nebraska joined a growing number of states that have banned same sex marriage by passing a constitutional amendment prohibiting the recognition of same sex marriage, civil unions, and domestic partnerships. Unlike legislation and amendments in other states which either simply define marriage as a union between a man and a woman or refuse to recognize same sex marriage, the amendment to the Nebraska constitution is a broad prohibition on the recognition of any partnership rights for same sex couples. The United States Supreme Court has yet to establish whether or not gays and lesbians should be treated as a suspect or quasisuspect class under equal protection analysis. However, it is clear that as more state bans on gay marriage and civil unions are challenged, the Supreme Court may soon be forced to declare its stance on this issue. As evidenced by the decisions of lower courts, the final decision on this issue may center on the question of whether gays and lesbians constitute a politically powerless group. If, like some lower courts, the Supreme Court elects to measure the political power of gays and lesbians in a different manner than it has historically measured the political power of women and racial minorities, the Supreme Court will continue to apply rational basis review to legislation classifying by sexual orientation, rather than applying the heightened or strict scrutiny standards it has used with regard to gender and race, respectively.

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