Nebraska and South Dakota Marriage Amendments: Similar But Different

Here is the Nebraska Marriage Amendment:
Article I-29
Marriage; same-sex relationships not valid or recognized.
Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

And here is the South Dakota marriage amendment:

Art. XXI, § 9.
Only marriage between a man and a woman shall be valid or recognized in South Dakota. The uniting of two or more persons in a civil union, domestic partnership, or other quasi-marital relationship shall not be valid or recognized in South Dakota.

How are these provisions different?

Disclosure: I was one of the Framers of the Nebraska Amendment and the sole Framer of the South Dakota Amendment. The South Dakota language is what I wanted to do in Nebraska, but someone (a non-lawyer) made a change at the last moment in Nebraska. I will explain in class.

In Citizens for Equal Protection v. Bruning, Pls. sued the Attorney General and Governor to permanently enjoin them from enforcing the Nebraska Marriage Amendment. Exactly which pending, imminent or threatened enforcement actions on the part of the AG and the Governor were Pls seeking to enjoin? Was either the AG or the Governor doing anything in the present or in the immediately foreseeable future to enforce the Amendment? If not, do Pls have standing to enjoin non-existent and non-threatened enforcement actions?

Under the 11th Amendment, is this really an action to enjoin state officials from taking unconstitutional action, or is this more accurately described as a suit against the State of Nebraska by Pls who have a generalized grievance against the State Constitution?

As an advocate who advised the the AG's office concerning this case, I was delighted that we lost the standing and 11th Am issues, because the 8th Circuit reached the merits and upheld the constitutionality of the Marriage Amendment (a ruling which is now the law of the 8th Circuit). But I continue to believe that the court lacked jurisdiction in this case under both Art. III and the 11th Amendment.

By the way, does the Nebraska Marriage Amendment prohibit same-sex "marriages" in Nebraska? If two people of the same sex "marry" in, say, a church located in Nebraska that performs same-sex "marriages" is this "marriage" prohibited by the Amendment? Does the Amendment prohibit a same-sex couple from living together and considering their relationship a "marriage?" Does the Amendment prohibit a private employer from providing various benefits to same-sex employees and their significant others?

Does the U.S. Constitution require states to recognize as a "marriage" any kind of consensual relationship for which people wish recognition and public benefits? If not all consensual relationships must be recognized, which ones? Why these and not others? We will consider many of these questions in a few weeks when we study the 14th Amendment and equal protection and due process.