March 2, 2015 at 9:48 am EST | by Chris Johnson
Court strikes down Nebraska’s ban on same-sex marriage
same-sex marriage, gay news, Washington Blade

A federal judge has ruled against Nebraska’s ban on same-sex marriage.

In the latest in a series of court decisions in favor of marriage equality, a federal judge in Nebraska has ruled against the state’s prohibition on gay nuptials.

U.S. District Judge Joseph Bataillon, a Clinton appointee, determines in a 34-page decision that Nebraska’s ban on same-sex marriage violates rights under the U.S. Constitution and issues a preliminary injunction enjoining enforcement of the law effective March 9.

“Nebraska’s ‘Defense of Marriage’ Constitutional Amendment, Section 29, is an unabashedly gender-specific infringement of the equal rights of its citizens,” Bataillon writes. “The State primarily offers as its rational basis for this gender-specific discrimination the encouragement of biological family units. The essence of this rationale has been rejected by most courts and by no less than the Supreme Court.”

Bataillon takes Nebraska to task for failing to demonstrate any reason to bar same-sex couples from marriage, noting the stable relationships of plaintiffs in the case.

“All of the couples have been in committed relationships for many years,” Bataillon writes. “Those that have resided in Nebraska have not caused damage to society at large or to the institution of marriage. The court finds it is in the public’s best interest to vindicate the plaintiffs’ constitutional rights and enjoin the State’s enforcement of its discriminatory marriage laws.”

Once the injunction takes effect on March 9, the Nebraska decision will make same-sex marriage available in a total of 38 states and D.C.

On Feb. 19, Bataillon held a hearing in which Susan Koening, an attorney for the seven plaintiff same-sex couples in the case, litigated against the ban and Nebraska Attorney General Doug Peterson argued in favor of it.

The lawsuit, Waters et al v. Ricketts et al, was filed by the American Civil Liberties Union, the ACLU of Nebraska and the Omaha-based law firm Koenig | Dunne on behalf of seven same-sex couples. Six of the couples were married out-of-state and are seeking state recognition of the union; one of the couples sought to right to wed in Nebraska.

Peterson has the option of appealing the decision to the U.S. Eighth Circuit Court of Appeals. Within a short time after the ruling was handed down, Peterson filed with the district court a notice indicating his intent to appeal.

Two other decisions overturning marriage laws in the Eighth Circuit — South Dakota and Arkansas — are already pending before the appellate court.

The ban on same-sex marriage in Nebraska was ratified as part of the state constitution in 2000 by 70 percent of the voters at the ballot.

The Nebraska ruling may be the last decision at the federal district court level to decide on the issue of marriage equality before the U.S. Supreme Court rules as expected in June.

It was one of three states with a ban on same-sex marriage where a court had yet to rule on the issue of marriage equality. The other two are North Dakota, where a judge put litigation on hold until the Supreme Court rules, and Georgia, where a judge also indicated he wouldn’t rule, but allowed parties to file an interlocutory appeal.

However, two appellate courts may issue decisions on marriage equality before the Supreme Court. The U.S. Fifth Circuit Court of Appeals could hand down a ruling at any time on bans in Texas, Louisiana and Mississippi, and the Eighth Circuit may deliver a ruling after it hears oral arguments in May. The U.S. Eleventh Circuit Court of Appeals has put litigation on hold in that jurisdiction, including the lawsuit in Georgia.

At the state level, the Arkansas Supreme Court is also set to issue a decision soon on the ban on marriage equality in the state as the result of state litigation.

Evan Wolfson, president of Freedom to Marry, said the Nebraska decision is the latest indication the Supreme Court should issue a nationwide ruling in favor of same-sex marriage.

“Every day that loving and committed couples are denied the freedom to marry in the decreasing number of states that still discriminate against same-sex couples and their families is a day of tangible hardships and indignity.” Wolfson said. “Fortunately, Nebraska may soon no longer be one of those discriminating states, thanks to today’s strong ruling from yet another court — the 65th in the past two years — affirming the freedom to marry. It is time for the U.S. Supreme Court to bring the country to national resolution and end marriage discrimination for all Americans.”

UPDATE: On Tuesday, Nebraska Gov. Pete Ricketts, Peterson and other state officials filed a 19-page brief with the Eighth Circuit seeking a stay of the district court’s injunction.

“If Nebraska’s Constitution is to undergo the dramatic change Plaintiffs seek, it should occur only after the district court’s order undergoes full appellate review,” the filing states. “The public interest is not served by unstable marriage laws.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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