Federal judge lifts Nebraska's ban on gay marriage

U.S. District Judge Joseph Bataillon ordered Nebraska not to enforce a voter-approved ban on gay marriage.

(AP Photo/Nati Harnik)
Susan Waters, center, glances at ACLU of Nebraska Executive Director Danielle Conrad, left, as she speaks to reporters outside Federal Court in Omaha, Neb., Thursday, Feb. 19, 2015, with Sally Waters, right. Terminally ill Sally was married to Susan in California, and they are one of seven same-sex couples who had sued to block Nebraska's ban on gay marriage. In the hearing, U.S. District Judge Joseph Bataillon was asked to require the state of Nebraska to recognize same-sex marriages immediately while a lawsuit challenging the state's gay marriage ban proceeds, but the judge did not issue an immediate ruling.

A federal judge on Monday blocked Nebraska's gay marriage ban, but the decision will not take effect for a week and the state plans to appeal.

U.S. District Judge Joseph Bataillon ordered the state not to enforce its ban. Last week he heard arguments for and against a motion for an injunction to block enforcement of the ban while a lawsuit challenging the ban is pending. Bataillon said the order will be effective March 9.

The American Civil Liberties Union of Nebraska sued the state in November on behalf of seven same-sex couples challenging the ban, which passed with the approval of 70 percent of voters in 2000. In addition to prohibiting gay marriage, the ban also forbids civil unions and legalized domestic partnerships.

The Nebraska Attorney General's office has said it will appeal any decision blocking or overturning the voter-approved ban on gay marriage.

Bataillon previously struck down Nebraska's gay marriage ban in 2005, saying it violated the constitutional rights of gays and lesbians. An 8th U.S. Circuit Court of Appeals panel reinstated the ban in 2006.

The plaintiffs in the latest Nebraska lawsuit argue that they are harmed every day the ban remains enforced.

Susan and Sally Waters of Omaha, who have been together for 17 years and were legally married in California in 2008, are among the seven couples suing to overturn the ban. They returned to their native Nebraska in 2010.

Sally Waters was diagnosed with terminal breast cancer in 2013, and says that without formal recognition of their marriage, her spouse won't receive the same tax and Social Security benefits to take care of the couple's children and will have to pay an 18 percent inheritance tax on half of the property they share, including their family home.

Any rulings in the latest Nebraska challenge are likely to be affected by a different case before the U.S. Supreme Court. The nation's high court announced Jan. 17 that it would decide whether same-sex couples have the constitutional right to marry everywhere in the U.S. A decision is expected by late June.

Last month,  the Supreme Court declined to declined to issue a stay of a federal judge’s ruling invalidating Alabama’s definition of marriage as a union of one man and one woman – effectively green-lighting gay marriage in the state. 

As The Christian Science Monitor reported, "The high court action in the Alabama case provides perhaps the best indication yet that a majority of justices are preparing to uphold same-sex marriage as constitutionally required in every state.:

In his dissent, Justice Thomas suggested as such. “This acquiescence may well be seen as a signal of the Court’s intended resolution of [the same-sex marriage] question,” he wrote.

Some legal analysts have opined that the justices would not allow same-sex marriages to begin in Alabama if they were inclined to later uphold a right of states to ban such marriages.

Gay marriage is currently allowed in 37 states and the District of Columbia.

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