Federal Judge Overturns Nebraska’s Ban On Same-Sex Marriage

CREDIT: AP Photo/Nati Harnik

Susan and Sally Waters, two of the plaintiffs in the Nebraska marriage case. Sally has been diagnosed with Stage IV metastatic breast cancer, which has spread to her spine. Susan carries health insurance for the whole family through her employer, and neither has survivor benefits.

With the Supreme Court’s ruling on marriage equality still months away, another federal judge has overturned a state’s ban on same-sex marriage — this time, Nebraska.

District Judge Jospeh Battalion, a Clinton appointee, ruled that Nebraska’s ban violated the U.S. Constitution, staying his ruling for just one week. Marriage equality would thus take effect on March 9, provided the Eighth Circuit doesn’t institute a longer stay.

Unlike in other circuits, the Eighth Circuit might be inclined to do just that. Battalion has actually ruled against Nebraska’s ban before, way back in a 2005 case called Citizens for Equal Protection v. Bruning. The state appealed, and a three-judge panel of the Eighth Circuit unanimously overturned his decision, ruling that the ban did not violate same-sex couples’ equal protection under the law. The Eighth Circuit is the only appeals court that has a precedent for upholding marriage bans.

Bruning, however, predates the Supreme Court’s Windsor decision overturning the federal Defense of Marriage Act and the many lower court decisions that have followed, providing Battalion with a new precedent upon which to rest his new ruling. He pointed out that Bruning was argued not over the fundamental right to marriage, but over “equal access to the political process” regarding the passage of the marriage ban. Further, the Eighth Circuit “did not consider whether laws prohibiting same-sex marriage would pass intermediate scrutiny as a gender-based classification.”

Battalion applied the latter reasoning to overturn the state’s constitutional ban: “The Amendment explicitly creates a classification based on gender because a person’s eligibility to marry, or to have his or her marriage recognized, is based on the gender of the individuals seeking to marry. It facially discriminates based on gender and is subject to an intermediate level of scrutiny.” In other words, the state has to demonstrate a compelling reason to forbid access to a fundamental right based on gender — and has failed to do so with its argument about promoting procreative relationships.

“Marriage is about more than procreation,” he noted. “The ostensible ‘procreative’ purpose does not hold up in light of the situations presented by infertile, intentionally childless, or elderly couples, all of whom are allowed the benefits and responsibilities of a state-sanctioned marital relationship. Even if the State’s purported justifications could be seen as important interests, a same-sex marriage ban is simply not substantially related to those interests.”

After acknowledging the financial and social hardships the families who brought the case will face if their marriages continue to go unrecognized, Battalion concluded by applauding them. “With the advent of modern science and modern adoption laws, same sex couples can and do responsibly raise children,” he wrote. “Unfortunately, this law inhibits their commendable efforts.”

The Eighth Circuit is already considering marriage cases from Missouri and Arkansas, with oral arguments expected later this Spring. Both those cases, however, were stayed pending appeal by the district court judges, so the Nebraska case, which has already been appealed, will present the Eighth Circuit with its first consideration of a stay. Other circuits, like the Eleventh, as well as the Supreme Court, have recently allowed these rulings to take effect. If the Eighth Circuit prioritizes upholding its own precedent from Bruning, it may implement a stay in the case. If, however, it decides that the dominoes are falling anyway, Nebraska could become the 38th marriage equality state next week.