OMAHA, Neb. (AP) – Nebraska’s same-sex marriage ban was thrown into question Monday alongside those in three nearby states that are set for a hearing before a federal appeals court.
U.S. District Court Judge Joseph Bataillon struck down Nebraska’s constitutional amendment, triggering an appeal less than an hour later by the state attorney general’s office.
The appeal could place the case before the conservative 8th U.S. Circuit Court of Appeals, which will hear similar cases out of Arkansas, Missouri and South Dakota. The court has tentatively scheduled arguments on those cases for the week of May 11.
Bataillon did not issue a stay on his ruling while the case is appealed, but ordered it not to go into effect until March 9.
Nebraska Attorney General Doug Peterson, a Republican, said his office would ask the federal appeals court to issue an emergency order barring county officials from issuing same-sex marriage licenses while the case is pending. He said otherwise there could be “chaos,” given that some Nebraska county clerks have refused to issue the licenses.
It wasn’t clear how the court would respond. Last month it declined to lift a stay on a same-sex marriage ruling issued by a federal judge in Missouri.
The American Civil Liberties Union of Nebraska had sued the state in November on behalf of seven same-sex couples challenging the ban, which had passed with the approval of 70 percent of voters in 2000. In addition to prohibiting gay marriage, it also forbids civil unions and legalized domestic partnerships.
Same-sex couples miss out on medical and financial benefits that are available to heterosexual married couples, Bataillon said as he issued the injunction.
“All of the plaintiffs have further demonstrated psychological harm and stigma, on themselves and on their children, as a result of the non-recognition of their marriages,” he said in his 34-page ruling. “The plaintiffs have been denied the dignity and respect that comes with the rights and responsibilities of marriage.”
Bataillon rejected the state’s argument that the ban reflects the will of a majority of voters and promotes family stability. He said he believes the U.S. Supreme Court will ultimately endorse same-sex marriage rights, which have been upheld in four appellate districts.
“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,” he said.
Gay marriage is currently allowed in 37 states and the District of Columbia. The U.S. Supreme 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.
Bataillon previously struck down Nebraska’s gay marriage ban in 2005, and the 8th Circuit reinstated it in 2006.
Peterson noted that the ruling did not address whether marriage is a fundamental right. He said the issue should be left to states, and in Nebraska’s case should be handled by letting voters decide whether to approve a constitutional amendment.
“I don’t think we can dictate our laws based on the emotional arguments of a certain class of people,” Peterson said. “We have to go through the proper constitutional process. I know that’s difficult, because it has an individual impact. But we can’t have our law dictated upon emotional claims.”
Nebraska’s case could be heard along with pending appeals filed by Missouri, Arkansas and South Dakota after judges in those states struck down same-sex marriage restrictions.
Peterson said he hasn’t yet talked with his counterparts in those states, but planned to reach out to them.
Gov. Pete Ricketts, a Republican, noted the majority of Nebraskans voted for the constitutional amendment.
“The definition of marriage is an issue for the people of Nebraska, and an activist judge should not substitute his personal political preferences for the will of the people,” Ricketts said.
Susan and Sally Waters of Omaha, who have been together for 17 years and were legally married in California in 2008, are among the 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.
Another plaintiff, Nick Kramer, said he wants the ban to be overturned to give his partner, Jason Cadek, automatic custody rights for his adopted 3-year-old daughter. Kramer and Cadek married in Iowa in 2013.
“We’re excited about this ruling and happy that Judge Bataillon decided that our family was worth recognizing,” Kramer said.