Nebraska’s same-sex marriage ban overturned; one week for appeal


March 3rd, 2015

Nebraska's same-sex marriage ban overturned; one week for appeal

Nebraska’s same-sex marriage ban overturned; one week for appeal

Same-sex marriage advocates are praising Monday’s court ruling striking down Nebraska’s ban, but giving a week for an appeal. Meanwhile Attorney General Doug Peterson is pressing ahead with that appeal, with the support of Governor Pete Ricketts. 



Lincoln, NE – Sally Waters and her partner Susan were married seven years ago in California. This morning their attorney called to tell them the marriage may soon also be legal in Nebraska. Sally Waters talked about her reaction. “My heart just swelled. I was so, happy. It’s a feeling of relief that this particular anxiety won’t be there to trouble us,” she said.

The Waters were lead plaintiffs on this case because of the urgency of their circumstance. Sally Waters has been diagnosed with terminal breast cancer. Not having their marriage recognized in Nebraska would block them from a variety of legal protections offered a man and wife.

The judge’s ruling applied to the Waters, the six other couples in the lawsuit, and any other same-sex couple hoping to marry in Nebraska. “I am happy that the decision of Judge Batallion was one of equality and justice across the board, not just in this particular set of seven couple’s lives,” Sally Waters said.

Nebraska voters approved a state constitutional amendment barring same-sex marriage in 2000. In his ruling Monday, U.S. District Court Judge Joseph Bataillon rejected all arguments made on behalf of Nebraska’s definition limiting marriage to one man and one woman. He stated marriage is more than just about procreation. He called the contention that family stability is possible only with heterosexual parents “repugnant.”  Marriage laws, he wrote “must be enforced equally and without respect to gender.  It is time to bring this unequal provision to an end.”

Attorney Angela Dunne of Omaha, part of the legal team representing the gay couples, said she was pleased with the wording of the decision. “The language that we really appreciated was just the directive that this needs to stop and that we need equality,” she said.

Dunne said while the order could make marriage available to same sex couples as soon as next Monday, the order gave the State of Nebraska time to appeal and possibly block counties from issuing licenses. ”That’s unclear. We are trying to focus on today and celebrate the win we have today. They have filed their appeal already so we will have to wait and see,” she said.

At an afternoon news conference, Nebraska Attorney General Doug Peterson noted the Eighth Circuit upheld Nebraska’s ban once before, in 2006. Since then, appeals courts in four other circuits have overturned same-sex marriage bans, while one has upheld them. The U.S. Supreme Court will hear a case next month and is expected to decide by late June. Peterson said Bataillon’s ruling is limited. “He chose not to make a decision as to whether or not marriage between a same-sex couple was a fundamental right. And I think that’s the key legal issue. Frankly I think most of us expect the U.S. Supreme Court will rule in June whether or not same-sex marriage is a fundamental right,” Peterson said.

Peterson acknowledged the issue is emotional for same-sex couples who want to get married in Nebraska. “But we can’t have our law dictated upon emotional claims. It has to be dictated upon sound constitutional reasoning. Otherwise, we’re subject to the emotion of the moment,” he said.

Peterson said the best thing would be for the Supreme Court to say marriage is up to the states, and for Nebraskans to vote on it again.

Gov. Pete Ricketts, supporting Peterson’s appeal, said he thinks public opinion still favors a ban. “I can tell you from my travels – extensive travels – across the state that Nebraskans still believe in this traditional definition of marriage. And while I know this is a difficult issue for many families, including my own, I don’t believe this is an issue for the preferences of one judge. This is an issue for the people of Nebraska,” he said.

Ricketts sister Laura is a leader in Lambda Legal, an organization defending lesbian and gay rights that was instrumental in overturning Iowa’s ban on same sex marriage.

Nebraska Democratic Party Chairman Vince Powers denounced Ricketts’ reaction as making the state appear “Backward and bigoted.” “Ricketts is hurting our economy by making Nebraska less attractive for new businesses to locate and bring new jobs,” Powers said, adding the governor is worsening the problem of “brain drain.”

The Nebraska Family Alliance criticized Bataillon’s ruling, saying in a statement “No court can redefine marriage. The truth remains that marriage always has been and always will be, only the union of one man and one woman.”

Sen. Les Seiler of Hastings, chairman of the Legislature’s Judiciary Committee, said he would be “very surprised” if the state wins its appeal.

In other legislative developments, senators voted first-round approval to a bill that would switch Nebraska back to the winner-take-all system for allocating electoral votes in presidential elections. The change is favored by the state’s Republican Party, and opposed by Democrats.

Sen. Bob Krist, a registered Republican often at odds with his party, said during debate he was unconvinced about changing the system. “The majority of people I talk to, except for the leadership of the Republican Party, agree that the way it is is not bad, and the reason for change is not compelling,” he said. But when it came time vote on whether or not to end a filibuster against the bill. Krist hesitated, then cast the decisive vote to keep the bill alive. Asked why, later, Krist said “I was asked if I could bring myself to vote for cloture and keep the debate going, at least until Select File (the second round of debate and voting). I don’t agree that this is the best thing for the state of Nebraska.” Krist declined to say who asked him to vote for cloture.

Lawmakers voted 31-17 to give the bill first round approval.

And on another subject, senators killed a proposal to give the Legislature, rather than voters. the power to decide on future expansions of gambling in Nebraska. The vote to kill the bill was 27-16.

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