Susan Waters, left, and Sally Waters walk away from Federal Court in Omaha, Neb., after a hearing, Feb. 19, 2015. Terminally ill Sally and her partner Susan are one of seven same-sex couples who had sued to block Nebraska's ban on gay marriage.
Photo by Nati Harnik/AP

Nebraska’s same-sex marriage ban goes down

Yet another same-sex marriage ban has fallen – this time, in Nebraska.

On Monday, U.S District Judge Joseph Bataillon – a President Bill Clinton appointee – struck down the Cornhusker State’s voter-approved amendment prohibiting gay and lesbian couples from marrying.

“It is time to bring this unequal provision to an end.”
U.S District Judge Joseph Bataillon
It marks the second time that this particular judge has overturned Nebraska’s 15-year-old ban on same-sex nuptials in the past decade, and the latest blow to a red state’s defense of so-called “traditional marriage.” The decision also comes just days after Nebraska’s child welfare officials agreed to stop enforcing the state’s policy blocking same-sex couples from becoming foster parents.

Thirty-seven states currently allow gay and lesbian couples to legally wed, including some in the most conservative parts of the country, like Alabama and South Carolina. The U.S. Supreme Court is set to consider the question of whether the Constitution guarantees the right for same-sex couples to marry next month, and could issue a landmark ruling by June that effectively invalidates the remaining 13 bans.

Calling the “Defense of Marriage” amendment “an unabashedly gender-specific infringement of the equal rights of [Nebraska’s] citizens,” Judge Bataillon rejected the state’s defense that its ban encourages “biological family units.” He placed a stay on the effects of his ruling until March 9, meaning same-sex couples won’t be able to marry in Nebraska before then.

“With the advent of modern science and modern adoption laws, same-sex couples can and do responsibly raise children,” wrote Bataillon in his 34-page order. “Unfortunately, this law inhibits their commendable efforts.”

He went on to say that “[f]or the majority of married couples, those without children in the home, marriage is a legal and emotional commitment to the welfare of their partner.” State laws can encourage that commitment, said Bataillon, but they “must be enforced equally and without respect to gender.”

“It is time to bring this unequal provision to an end,” he concluded.

“An activist judge should not substitute his personal political preferences for the will of the people.”
Gov. Pete Ricketts (R-NV)
Nebraska’s same-sex marriage ban, which 70% of voters approved in 2000, is particularly sweeping in that it bars civil unions, domestic partnerships, “or other similar same-sex relationships” in addition to marriage. Judge Bataillon found the amendment unconstitutional in 2005, but it was reinstated by the 8th Circuit Court of Appeals the following year.

Nebraska’s Republican attorney general, Doug Peterson, has already appealed to the 8th Circuit, which also has marriage equality cases pending from Arkansas, Missouri, and South Dakota. Gov. Pete Ricketts, also a Republican, quickly condemned Bataillon’s ruling in a statement.

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

Marriage Equality

Nebraska's same-sex marriage ban goes down