Ruling Means Nebraska Could Have Marriage Equality Next Week

A federal district judge appointed by President Clinton struck down Nebraska's ban on same-sex marriage Monday, reports the Associated Press. The state's Republican leadership has already appealed the decision to the Eighth Circuit Court of Appeals. 

U.S. District Judge Joseph Bataillon placed a one-week hold on his ruling, meaning same-sex couples cannot yet wed in the Cornhusker State. That stay could be extended if the Eighth Circuit grants a request from the state to do so during the appeal. 

Like more than 60 other state and federal judges before him, Judge Bataillon determined that Nebraska's ban, approved by more than 70 percent of voters in 2000, violates the Equal Protection Clause of the U.S. Constitution. 

Not only does Bataillon's ruling indicate that the same-sex couples who filed suit are likely to be successful on appeal, he also goes further to speculate, "The Supreme Court will ultimately endorse, for one reason or another, the [pro-equality] results obtained in the Fourth, Seventh, Ninth and Tenth Circuit challenges to same-sex marriage bans." 

The AP notes that Bataillon previously ruled in favor of equality in 2005, when he struck down the state's ban, which also prohibits civil unions or domestic partnerships for same-sex couples. Bataillion's 2005 ruling was unanimously overturned by the Eighth Circuit, which found that "the ban did not violate same-sex couples' equal protection under the law," reports Zack Ford at ThinkProgress. "The Eighth Circuit is the only appeals court that has a precedent for upholding marriage bans." 

Bataillon outright rejected the state's claims that its marriage ban promoted so-called responsible procreation, somehow encouraging heterosexual couples to marry and raise children in intact homes. 

"The State relies essentially on variously phrased arguments that reveal a clear preference for opposite-sex parenting and express an interest in promoting biological reproduction," writes Bataillon. "These arguments are rooted in archaic and overbroad stereotypes about gender roles."

"Marriage is about more than procreation," Bataillon continues. "The State essentially pays lip service to marriage as an institution conceived for the purpose of providing a stable family unit, but it ignores the damage done to children by denial of the right to marry to numerous same-sex households."

"To the extent the State's position is that it has an interest in promoting family stability only for those children who are being raised by both of their biological parents, the notion that some children should receive fewer legal protections than others based on the circumstances of their birth is not only irrational — it is constitutionally repugnant," the judge concludes.

Today's ruling comes in a case filed by the American Civil Liberties Union of Nebraska on behalf of seven same-sex couples, including two women, one of whom has been diagnosed with terminal breast cancer. The women are seeking recognition of their 2008 California marriage, to prevent the surviving spouse from having to pay inheritance taxes on the home they own together and possibly being denied Social Security survivor benefits.