Same-Sex Marriage: Where Nebraska Stands


March 11th, 2015

(Graphic: Bill Kelly/NET News)

(Graphic: Bill Kelly/NET News)

Here’s a summary of the legal battle over same same-sex marriage in Nebraska.

As of right now…

Despite the order issued by Judge Joseph Bataillon in February, marriage in Nebraska is limited to one man and one woman until the case is reviewed by an appellate court or the U.S. Supreme Court rules marriage must be made available to all.


Article I-29 of the Nebraska State Constitution reads: “Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.”

Sally and Susan Waters speak at University of Nebraska-Kearney (Photo: Bill Kelly/NET News)

Sally and Susan Waters speak at University of Nebraska-Kearney (Photo: Bill Kelly/NET News)

What is the lawsuit?

In Waters, etal. V. Ricketts, etal seven couples in same sex relationships challenged the constitutionality of Nebraska’s fifteen year old ban on gay marriage. Each couple argued they had been harmed by the state’s definition of marriage because it denied them of rights and services made available to men and women married in the state.

The State of Nebraska argued it was not appropriate for a federal judge to throw out a part of Nebraska’s constitution legally implemented by a majority of its citizens in a referendum vote. At a news conference the day the case was presented in Federal Court Attorney General Doug Peterson said “citizens have the right to determine these matters, and the referendum should be upheld and not addressed by the courts.”

The Attorney General also maintains the historic purpose of marriage is pro-creation to sustain civilization; something unique to traditional marriages between one man and one woman. Peterson said “the purpose of government is not to define an emotional relationship, but what is of benefit to society” which in the case of marriage is pro-creation for sustaining human civilization.

What did the federal court decide?

Judge Bataillon wrote Nebraska’s marriage laws “must be enforced equally and without respect to gender. It is time to bring this unequal provision to an end.” In his lengthy order the judge was especially harsh on limitations faced by same-sex couples seeking equal rights as parents.

State laws pertaining to same-sex marriage (Graphic: National Conf. of State Legislatures)

State laws pertaining to same-sex marriage (Graphic: National Conf. of State Legislatures)

(Read the full order here)

Bataillon wrote: “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 decision brought harsh criticism from proponents of limiting marriage to heterosexuals. In a joint statement, Nebraska’s three Catholic Bishops claimed the order “presumes to nullify what God has written on human hearts since the beginning of time.”

(Read the statement from Nebraska’s Catholic Bishops)

The order was not effective immediately, giving the State of Nebraska a week to appeal to the Court of Appeals, which it did. The appeal will now be heard in conjunction with four other cases in which other federal judges ruled state bans on same-sex marriage were unconstitutional.

How did we get here?

In 2000 Nebraska voters approved an amendment to the state’s Constitution defining marriage as exclusively the right of a man and a woman.

The group Citizens for Equal Protection challenged the legality of the definition in U.S. District Court. Judge Bataillon declared it an unconstitutional violation of civil rights.

The amended Constitution won the approval of the United States Court of Appeals of the Eighth Circuit in 2006. Thethree-judge panel ruled Nebraska had a right to decide who could legally marry.

Public Opinion changed dramatically since referendum passed in 2000. At the time seven out of ten Nebraska voters agreed limiting marriage to one man and one woman was the right thing to do. In 2012 a poll taken by the Omaha World-Herald revealed 54 percent of the people asked approved of either same-sex marriage or civil unions.

(History of same-sex marriage laws in the United States)

What’s next?

The Nebraska case will now be heard by the 8th Circuit Court of Appeals along with three other similar cases brought in the same judicial district. The appellate court had already been scheduled to hear arguments about the constitutionality of bans on same sex marriage in South Dakota, Missouri, and Arkansas. The hearing is scheduled for May 12 at the federal courthouse in Omaha.

The regional cases have been scheduled after arguments are to be heard on similar issues before the U.S. Supreme Court. The high court is scheduled to spend two-and-a-half hours of testimony on April 28.


As a precaution prior the ruling in Waters v. Ricketts, county clerks in some Nebraska took steps to accommodate the potential for same-sex marriages. Forms and instructions sheets were re-designed to eliminate direct references to brides and grooms, replacing them with gender-neutral terms like “applicant.”

(Take a look at the Douglas County form here.)

Other county clerks expressed concerns about being required to issue a license to gay couples when it conflicts with their personal beliefs.

Any change in law would not require clergy to perform same-sex marriage ceremonies. One organization, Heartland Clergy for Inclusion, has compiled a list of over 60 pastors willing to preside at weddings regardless of the participant’s sexual orientation.


One Response

  1. Clyde Stout says:

    Marriage is One Man, One Woman, that is the way of nature.

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