The Nebraska Constitution (art. I, sec. 29) provides:
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.
Neb. Const. art. I, sec. 29 (2000);
Adopted 2000, Initiative Measure No. 416.
Is the Nebraska marriage amendment extremely broad like Amendment 2, or does it narrowly deal with only the issue of marriage and close-substitutes for marriage?
The Eighth Circuit (in the Bruning case) upheld the Nebraska Marriage Amendment and said it is rationally-related to the legitimate interest in "steering procreation into marriage?" Is there a strong government interest in encouraging procreation to take place within a marriage between the procreating partners? In other words, is out-of-wedlock procreation a social problem that the state has a legitimate interest in discouraging? If so, is it rational to limit the "responsible procreation" program to couples whose sexual relationships might result in procreation?
Although the Romer Court said it was applying the rational basis test, some commentators view the decision as actually applying some kind of medium rare scrutiny to Amendment 2. Did Justice Kennedy's reluctance to ratchet up the level of review for sexual orientation discrimination affect the outcome of Bruning? How would the case come out under intermediate scrutiny or strict scrutiny?
