Same-Sex Marriage Ban in Neb. on Borrowed Time

     OMAHA (CN) – Nebraska must recognize same-sex marriages performed in other states and issue marriage licenses to gay couples who apply, a federal judge ruled Monday, issuing a preliminary injunction.
     “An asserted preference for opposite sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation,” Senior U.S. District Judge Joseph Bataillon wrote.
     The 34-page opinion cites concerns that the law denies same-sex couples and their children equal protection. “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,” Bataillon, an appointee of President Bill Clinton, wrote.
     Bataillon’s injunction gives all state officials until March 9 to “treat same-sex couples the same as different sex couples in the context of processing a marriage license.”
     Nebraska Attorney General Doug Peterson moved for a stay of the injunction during the hearings so the state could file an appeal, citing the potential for “chaos” during an interim period before the appeal is settled.
     Bataillon denied the request, but the week-long lag provides the state with more than enough time to respond before marriage licenses can actually be issued. In fact, Peterson filed an appeal to the 8th Circuit within an hour of Bataillon’s ruling appearance.
     Whether the 8th Circuit will take up the matter or issue an emergency injunction before the March 9 deadline is unclear. The federal appeals court overturned a Bataillon ruling on this matter before.
     Voters approved the Nebraska ban on gay marriage in 2000 – the ballot initiative garnered 70 percent of votes cast at the time.
     State officials have long pointed to the wide-spread support of the ban among Nebraskans as a rationale for keeping it in place.
     “An activist judge should not substitute his personal political preferences for the will of the people,” Nebraska Gov. Pete Ricketts, a Republican, said in a statement.
     Both Ricketts and Peterson have vowed to defend the state constitution as written.
     Of critical importance to Bataillon’s ruling is the plight of lead plaintiffs, Susan and Sally Waters. Sally has Stage III terminal breast cancer that has spread to her spine.
     As a result of Nebraska’s discriminatory law, one of the most stringent of those remaining among U.S. states, the Waters and their children are denied access to health insurance, pension and survivor benefits that are afforded to other married couple, the court found.
     Susan Waters and their children will not be able to collect Social Security benefits as surviving family members and will have to pay taxes on Sally’s retirement funds.
     Bataillon agreed that the couple deserve an emergency injunction.
     “In view of Sally Waters’s cancer diagnosis, there is a real possibility that she will not live to see this issue resolved in the courts,” Bataillon wrote. “The Waters family faces the concrete and certain prospect of denial of widow or survivor benefits as a result of the nonrecognition of their marriage.”
     Bataillon also heard a 2003 challenge to the amendment. Though he found the ban unconstitutional then as well, the 8th Circuit reversed.
     The judge intimated Monday that Nebraska’s ban is on borrowed time.
     “The court finds the plaintiffs have demonstrated they will likely prevail on the merits of their claim,” he wrote. “The court is persuaded that the Supreme Court will ultimately endorse, for one reason or another, the results obtained in the Fourth, Seventh, Ninth and Tenth Circuit challenges to same sex marriage bans.”
     A decision by the Supreme Court on state laws banning same-sex marriage is expected in June.

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