In June 2003 the U.S. Supreme Court struck down a controversial homosexual sodomy statute in Lawrence v. Texas. The issue was whether the Due Process Clause of the Fourteenth Amendment permitted a state to criminalize private and consensual sexual activity between adults. The Court held that it did not. Since the decision, much of the public discourse has turned to the subject of marriage and whether or not existing state laws that exclude same-sex marriages from public recognition will be able to stand in light of Lawrence. People on both sides of the issue assert that Lawrence paves the way for future challenges to existing state marriage laws that define marriage as being between a man and a woman. A broad reading of Lawrence may suggest that Defense of Marriage Acts (“DOMAs”) are on shaky ground, while a narrow reading suggests that DOMAs are secure for now. The purpose of this Note is to examine the Court’s decision in Lawrence and to discuss what impact, if any, its holding and reasoning might have on future constitutional challenges to Nebraska’s marriage provision. Part II of this Note reviews the background of Lawrence as well as the holding in Bowers v. Hardwick, which the Lawrence Court overruled and concludes with an overview of Nebraska’s marriage provision in Section 29 of the Nebraska Constitution. Part III examines some of the language in the majority and concurring opinions of Lawrence and how it might be employed in efforts to overturn Nebraska’s DOMA. The majority’s use of foreign law is discussed and the due process analysis in Lawrence is evaluated. In Part IV, I argue that Lawrence’s impact upon Nebraska’s marriage provision and similar enactments in other states should be minimal, because the issues of sodomy and marriage are two different issues, state laws that restrict the definition of marriage to one man and woman are rationally related to a legitimate state interest, and the Court in Lawrence explicitly limited its holding to sodomy laws.
Kevin R. Corlew,
Not on "Shaky Grounds": Lawrence v. Texas, 123 S. Ct. 2472 (2003), and the Constitutionality of State DOMAs Such as Nebraska's Marriage Provision, NEB. CONST. art. I, § 29,
83 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol83/iss1/7