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Courts uphold pro-marriage initiatives in Neb., Tenn.

WASHINGTON (BP)–A federal appeals court has provided defenders of marriage an important victory, reversing a judge’s decision and reinstating Nebraska’s constitutional amendment defining the institution as only between a man and a woman.

The Eighth Circuit Court of Appeals’ July 14 opinion, the first such ruling by a federal appellate court, came the same day as another pro-family win at the state level. The Tennessee Supreme Court unanimously rejected an effort to bar from this year’s ballot a proposed amendment to the state constitution restricting marriage to a man and a woman. As a result, Tennessee voters will decide on the amendment in November.

The Lambda Legal Defense and Education Fund, a New York-based homosexual rights organization, said it was weighing whether to ask the entire Eighth Circuit to review the decision by a three-judge panel on the Nebraska amendment or to appeal to the U.S. Supreme Court, according to the Lincoln Journal Star.

The American Civil Liberties Union of Tennessee said it would not appeal the state high court’s ruling, the Nashville Tennessean reported.

The July 14 opinions followed pro-marriage victories July 6 and 10 in the high courts of New York, Georgia and Massachusetts.

The U.S. House of Representatives, meanwhile, is scheduled to vote July 18 on a constitutional amendment that would define marriage traditionally. In June, the Senate failed in its effort to pass the Marriage Protection Amendment.

Pro-family advocates applauded the decisions in the Eighth Circuit and Tennessee.

Both opinions “correctly focused on the legal aspects of marriage, rather than caving to political special interests,” Chris Stovall, senior legal counsel of Alliance Defense Fund, said in a written release. “These strong decisions today reaffirm that ‘same-sex marriage’ is not inevitable. They also demonstrate that there are judges who respect the rights of voters and have a clear understanding of what marriage is in terms of the law and the reasons why the state regulates and encourages it.”

Southern Baptist church-state spokesman Richard Land told Baptist Press defenders of marriage “should be encouraged by what is now a rather impressive winning streak in courts, federal and state, as well as at the ballot box. Everywhere people have had a chance to vote on the issue, they have voted state by state by state, 20 states in all, and voted by landslide margins to define marriage as only between a man and a woman. Now federal and state courts are catching up with the will of the people.”

“This shows that President George W. Bush is having, and will have, an impact on the federal judiciary, since it is estimated by the time he leaves office he will have nominated 35 percent of the judiciary at the federal and appellate levels,” said Land, president of the Ethics & Religious Liberty Commission.

The recent defeats for advocates of “same-sex marriage” demonstrate, Land said, that “even federal and state courts have ears, and when the people speak loudly enough, often enough and in sufficient numbers, even the courts get the message.”

While commending the latest rulings, some defenders of marriage warned other courts threaten to redefine marriage in a way that could affect the entire country.

The high courts of New Jersey and Washington state “remain poised to strike down marriage,” said Matt Daniels, president of the Alliance for Marriage, in a written statement. “These decisions will have national repercussions, as neither state requires residency for the issuance of a marriage license, unlike Massachusetts.”

Though it legalized “homosexual marriage” in 2003, the Massachusetts Supreme Judicial Court decided unanimously July 10 that a proposed constitutional marriage amendment could appear on the ballot if it gains legislative approval. For now, Massachusetts is the only state with “same-sex marriage.”

On July 6, the New York Court of Appeals ruled that the state’s laws do not permit “gay marriage.” The Georgia Supreme Court ruled on the same day that a state amendment defining marriage traditionally is constitutional.

In addition, a Connecticut judge rejected July 12 an attempt by homosexual couples to force the state to grant them marriage licenses, saying the legislature did not act unconstitutionally in legalizing civil unions instead of marriage for homosexuals.

In the case decided by the Eighth Circuit, Nebraska’s voters approved with a 70 percent majority in 2000 an amendment that prohibits “gay marriage,” civil unions and domestic partnerships, but federal Judge Joseph Bataillon struck down the measure in May 2005. In the first decision of its kind, Bataillon ruled the amendment violated the First Amendment right to petition the government and the Fourteenth Amendment’s due process and equal protection clauses.

In their opinion, however, three judges of the Eighth Circuit agreed that Bataillon, a 1997 nominee by President Clinton, was wrong on both counts.

“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 U.S. Constitution, James Loken wrote for the panel.

Marriage “has always been, in our federal system, the predominant concern of state government,” Loken wrote. He said the Supreme Court has reaffirmed a state has the authority to determine the conditions and candidates for a valid marriage.

Nebraska contends “the many laws defining marriage as the union of one man and one woman and extending a variety of benefits to married couples are rationally related to the government interest in ‘steering procreation into marriage,’” Loken said in the opinion. “Whatever our personal views regarding this political and sociological debate, we cannot conclude that the state’s justification ‘lacks a rational relationship to legitimate state interests,’” he said, citing a 1996 high court decision.

As to Bataillon’s suggestion that the amendment abridged the right to petition by homosexuals, bisexuals and transsexuals, Loken wrote, “The First Amendment guarantees the right to advocate; it does not guarantee political success.”

The ACLU of Tennessee sought to block a November vote on a marriage amendment based on a technicality. The ACLU argued the Tennessee legislature did not publish the text of the proposed amendment in time after passing it in the first of two required votes. The ACLU said the amendment was not published in newspapers until June 20, 2004, less than six months before the next election, but the state argued it was placed on the Internet and news about it was broadcast before that date.

The state high court, however, rejected the ACLU contention.

In addition to Tennessee, five more states -– Idaho, South Carolina, South Dakota, Virginia and Wisconsin -– are set to vote in November on marriage amendments. Two more states, Arizona and Colorado, also could consider such amendments if they gain the signatures necessary.

The 20 states that have passed marriage protection amendments have done so with an average of 71 percent of the vote in favor.