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Dioceses file brief in Nebraska marriage case


All 21 Catholic dioceses located within the jurisdictional boundaries of the Eighth U.S. Circuit Court of Appeals are represented in the filing of a amicus curiae ('friend of the court") brief urging the court to reverse a lower court's ruling that the provision in Nebraska's state constitution defining marriage violates the U.S. Constitution.

In addition to Nebraska, the Eighth Circuit encompasses the states of North Dakota, South Dakota, Minnesota, Iowa, Missouri and Arkansas.

Last May 12 a federal district court judge in Omaha ruled that Article I, Section 29 of the Nebraska Constitution, a constitutional amendment approved by 70 percent of the voters in November 2000, runs afoul of several provisions of the U.S. Constitution. The ruling marked the first time that a federal court has struck down a state constitution insofar as it reserves the institution of marriage to a man and a woman. Nebraska Attorney General Jon Bruning appealed the decision to the Eighth Circuit appeals court, and the matter is now in the briefing stage prior to oral arguments.

The amicus brief was filed on behalf of the Nebraska Catholic Conference and its counterpart state conferences of North Dakota, Minnesota, Iowa and Missouri. The state Catholic conferences officially represent the mutual interests and concerns of the dioceses in their respective states on matters involving public policy. The Dioceses of Rapid City and Sioux Falls in South Dakota and Little Rock in Arkansas joined on the brief individually because separate Catholic conferences do not exist in those states. Also participating in this brief are: Family First and Families for America, both Nebraska-based family advocacy organizations.

Speaking on behalf of the Nebraska Catholic Conference, Executive Director James R. Cunningham said that 'preserving the institution of marriage as the union of a man and a woman is a public policy cause of high priority for the bishops."

'This is a highly significant case, with major public-policy ramifications, both in the present and for the future, and the opportunity to have a voice in the current process could not be ignored or bypassed."

Cunningham said it was 'extremely important and gratifying" that all the other state conferences and dioceses throughout the Eighth Circuit are participating in the process that will lead to a ruling on the appeal by the State of Nebraska.

North Dakota, Missouri and Arkansas also have state constitutional amendments that define marriage as exclusively the union of a man and a woman. South Dakota will have such a marriage amendment on the ballot in November 2006 and similar proposals are pending in Iowa and Minnesota.

The brief of these amicus curiae sets forth and develops two basic arguments. First, a state may indeed reserve the institution of marriage, including the rights, privileges and benefits thereof, to opposite-sex couples and not be in violation of either the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. This is the threshold question in the case, but one that the plaintiff challengers to Article I, Section 29 did not ask and that the district court judge failed to answer. Support for this argument is firmly rooted in 'the nation's history, legal traditions and practices," but even more, is inherent in the nature and purposes of marriage as a natural and social institution, which serves as the basis of family and an essential component of the common good.

Secondly, since a state may reserve marriage to opposite-sex couples, such an otherwise constitutional public policy does not become unconstitutional merely because it is expressed in a state constitution rather than a statute. Neither the First Amendment nor the Equal Protection Clause of the Fourteenth Amendment forbids the people of Nebraska from amending their state constitution as they voted to do in 2000. Article I, Section 29 is rationally related to multiple legitimate, indeed compelling, interests, including ensuring a stable legal and societal framework in which children are procreated and raised, and providing the benefits of dual-gender parenting for children.

The principal author of the amicus brief is Paul B. Linton, a highly reputable and many-times-published attorney from Northbrook, IL. Linton has extensive experience in both constitutional law and federal court appeals. He has worked with state Catholic conferences on numerous occasions.

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