Judge strikes down state's ban on same-sex marriage

The state quickly scrambled to request a stay that would delay the March 9 date Judge Joseph Bataillon set for his order to go into effect.

In the order posted early Monday, Bataillon called section 29 of the state Constitution -- Nebraska’s Defense of Marriage Amendment -- an "unabashedly gender-specific infringement of the equal rights of its citizens."

Approved by 70 percent of voters in 2000, the ban defines a valid marriage as one between a man and a woman.

The state has the right to encourage couples to marry and provide support for one another, the judge wrote.

"However, those laws must be enforced equally and without respect to gender. It is time to bring this unequal provision to an end."

Bataillon ordered all relevant state officials to treat same-sex couples the same as other couples in the context of processing marriage licenses or "determining the rights, protections, obligations or benefits of marriage."

Fifty-five minutes after the ruling, Nebraska Attorney General Doug Peterson filed an appeal.

The state had asked Bataillon to allow for at least 14 days before an injunction would go into effect. The judge gave it a week.

The state also is seeking a stay that, if successful, would put the date on hold.

The U.S. Circuit Court of Appeals could grant the stay, let Bataillon's order stand or extend the day it goes into effect, said Michael Gans, clerk of the Eighth Circuit court.

He said the court typically wants to hear from both sides before deciding, but that could happen within the week.

"The court is well aware of the consequences of allowing things to proceed and then throwing it in reverse," Gans said.

Although there's no telling how many people would head to clerk's offices across the state to get marriage licenses, there were 3,331 same-sex households in Nebraska in 2013, according to the U.S. Census Bureau.

ACLU of Nebraska Executive Director Danielle Conrad said her group will work on all fronts to oppose a stay so that "this very strong, very broad ruling can take effect."

On the other side, Gov. Pete Ricketts called Bataillon an activist judge and said his ruling goes against the will of Nebraskans.

"The definition of marriage is an issue for the people of Nebraska, and an activist judge should not substitute his personal political preferences for the will of the people," he said.

Bataillon is hardly alone.

In the Eighth Circuit, federal judges in Arkansas, Missouri and South Dakota have struck down similar same-sex marriage bans since November.

Second-time ruling 

This is not the first time Bataillon has struck down Nebraska's ban.

In Citizens for Equal Protection v. Bruning, he declared it unconstitutional based on an argument that it violated same-sex couples' right to access the political process. He ruled in 2005, the state appealed and the Eighth Circuit overturned him in 2006.

At a news conference Monday, the state's new attorney general was quick to point out that Bataillon had been overturned on the issue before and said he hopes that may be an indication the appeals court will be willing to put the judge's order on hold.

"We don’t believe it should be left up to one judge or a panel of judges," Peterson said. "It’s a matter that has to be debated among the people."

Standing side-by-side, he and Ricketts said if someone wants to change the state's Constitution, the most appropriate method would be to put the question to another vote.

"I can tell you from my extensive travels across the state that Nebraskans still believe in this traditional definition of marriage," Ricketts said. "And, while I know this is a difficult issue for many families, including my own, I don't believe that this is an issue that should be decided by the preferences of one judge. This is an issue for the people of Nebraska."

Ricketts, whose sister Laura is a lesbian and outspoken supporter of LGBT issues, vowed to defend the ban, saying he and Peterson were sworn to uphold the Constitution and, "that's what we’re going to do."

The case

Monday's decision came in an ACLU-backed lawsuit brought in November by seven couples seeking the right to marry and to have marriages performed legally in other states recognized here.

Amy Miller, the legal director for ACLU of Nebraska, said last month that the case came down to a fundamental right to marry. The U.S. Supreme Court has acknowledged that right in cases involving interracial couples, prison inmates and people who owe child support, she said.

Constitutional rights never should have been put to a vote, Miller said.

On the other side, Assistant Attorney General David Lopez wrote in a brief to the court that the state has an interest in promoting procreation and other interests associated with heterosexual marriage.

He said citizens of a state have a recognized right to define marriage within its borders and that, unless or until the U.S. Supreme Court takes the next step, Nebraska's ban is entitled to be presumed as constitutional.

Lopez argued that to overturn the ban would demean democracy because Nebraskans voted for it.

Both sides presented their arguments in Waters v. Ricketts to Bataillon on Feb. 19.

In Monday’s decision, the judge said he wasn't persuaded by the state's contention that the question of restricting marriage to opposite-sex couples should be left to the democratic process.

"The amendment is not somehow insulated from review because it was enacted by a significant majority," he wrote.

The judge said other rationales presented by the state have uniformly been rejected by courts addressing the issue elsewhere. Arguments about the benefits of opposite-sex parenting, for example, were "rooted in archaic and overbroad stereotypes about gender roles," he said.

"Marriage is about more than procreation," Bataillon wrote.

He said the state's arguments also ignore the damage done to children of same-sex couples whose parents have been denied the right to marry. He said the notion that those children should have fewer legal protections than others based on the circumstances of their birth was not only irrational but "constitutionally repugnant."

He found that the couples in Waters v. Ricketts showed concrete ways they are suffering harm while the ban stands.

"In contrast, the state has not demonstrated that it will be harmed, in any real sense, by the issuance of an injunction," Bataillon wrote.

One of the plaintiffs, Sally Waters, has breast cancer and her wife, Susan, would be denied financial protections afforded to widows should she die before the case is decided. And plaintiff Jason Cadek may not be able to make medical decisions in an emergency for his husband’s adopted 3-year-old daughter.

'A day for celebration'

"Today is a day for celebration," the ACLU's Conrad said within minutes of the ruling.

"The love and commitment our clients share will finally be entitled to equality and respect in the eyes of the law. Today, Nebraska’s motto of 'equality before the law' rings true for gay and lesbian Nebraskans who seek to have their marriages recognized or who seek the freedom to marry right here in our great state," she said in a statement.

Susan Waters said she got the news in a phone call.

"We won," Sally Waters told her, and at first, Susan Waters thought she was talking about the lottery.

"This is sort of like the lottery in the sense that it means as much, actually more ... and it impacts a lot of families," she said.

They’re obviously thrilled, she said. At the same time, she said, she’s going to wait and see.

"I’m very hopeful, but cautious," Susan Waters said.

They'll know more by Monday, when the state will either begin issuing marriage licenses to same-sex couples or the ruling is on hold.

"They want us to wait, but they can't either. We didn’t want to wait for equality, and they can’t wait to take it away," she said.

What's next?

The Eighth Circuit already was set to hold oral arguments in Omaha in May in appeals of cases that struck down bans in South Dakota, Arkansas and Missouri.

Gans, the clerk of the court, said it's possible the Nebraska case could be added.

"I guess we'll have to wait and see what they ask the court to do," he said.

In each of those cases, federal judges lifted bans on same-sex marriage but stayed their own rulings to allow for anticipated appeals.

Bataillon did not. So if the Eighth Circuit decides not to stay his decision, same-sex marriages could be happening in Nebraska as soon as next week.

Eric Berger, an associate professor of law at the Nebraska College of Law, said the Nebraska case is a prelude to a much bigger issue.

"(This) has symbolic importance in the state, but there’s a pretty good chance the United States Supreme Court will render a decision on the merits by late June, which will decide the issue for the whole nation," he said.

In January, the nation's high court agreed to take up same-sex marriage cases in Kentucky, Michigan, Ohio and Tennessee and rule on whether states can ban same-sex marriages and refuse to recognize those marriages performed in states where they are legal.

The same issues are at play in Nebraska.

The U.S. Supreme Court has set aside 2½ hours this spring to hear those cases and is expected to make a final ruling by early summer.

"If we have to wait, we have to wait," Nickolas Kramer said at a news conference in Omaha Monday afternoon. "Some people say one more day couldn't hurt, but one more day could hurt. One more day could be the end of some of our lives. It could be the health issue that puts one of us over the edge."

He and his husband, Jason Cadek, have talked many, many times about moving, he said, but they love Nebraska.

"So we decided that rather than move to a place that will accept us, we will help Nebraska become a better place for everybody," Kramer said.