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Judge strikes down Nebraska gay marriage ban

A federal judge Thursday struck down Nebraska’s ban on gay marriage, saying it  interferes not only with the rights of gay couples but also with foster parents and adopted children.
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In the first time that a federal judge has struck down a state constitutional provision limiting marriage to heterosexual couples, U.S. District Judge Joseph Bataillon on Thursday declared void a provision of the Nebraska constitution that defined marriage as only between a man and a woman and that banned same-sex civil unions, domestic partnerships and other similar relationships.

Bataillon declared in his ruling that under the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, Nebraska cannot ban same-sex marriages and civil unions.

The ruling may call into question similar provisions in other states’ constitutions. 

Nebraska voters enacted the provision five years ago, with 70 percent approving it.

Will rekindle debate in Congress
The ruling is sure to rekindle debate in Congress over judicial power and may re-energize the forces backing an amendment to the U.S. Constitution to limit marriage to man-woman couples.

In a statement, Nebraska Attorney General Jon Bruning said the state would appeal Bataillon’s ruling.

“Seventy percent of Nebraskans voted for the amendment to define marriage as a union between one man and one woman, and I believe that the citizens of this state have a right to structure their constitution as they see fit,” Bruning said.

Bataillon, who was nominated to the federal bench by President Clinton in 1997 and unanimously confirmed by the Senate, based his ruling on two Supreme Court decisions, Romer v. Evans in 1996 and Lawrence v. Texas in 2003, with the majority opinion in both written by Justice Anthony Kennedy.

Nebraska could not limit the rights of gays and lesbians “to obtain legal protections for themselves or their children in a ‘same-sex’ relationship ‘similar to’ marriage,” said Bataillon.

The Nebraska constitutional provision, he said, “attempts to impose a broad disability on a single group” and the Romer decision bans such disabilities, he said.

The Nebraska provision “is at once too broad and too narrow to satisfy its purported purpose of defining marriage, preserving marriage, or fostering procreation and family life,” Bataillon wrote.

He called it “too narrow” because “it does not address other potential threats to the institution of marriage, such as divorce.”

And it is “too broad in that it reaches not only same-sex ‘marriages,’ but many other legitimate associations, arrangements, contracts, benefits and policies.”

The judge said the amendment’s “broad proscriptions could also interfere with or prevent arrangements between potential adoptive or foster parents and children, related persons living together, and people sharing custody of children as well as gay individuals and people inclined to align with them to promote changes in legislation.”

GOP senator sees ‘threat’
Sen. John Cornyn, R-Texas, an advocate of a federal constitutional amendment to define marriage, reacted to Bataillon’s ruling by noting that, when the Senate debated the proposed federal marriage amendment last year, “opponents claimed that no state laws were threatened, that no judge had ever ruled against state marriage laws. They claimed that the states and their voter-approved laws defending marriage were under no threat. After today’s ruling, they can no longer make that claim.”

Matt Daniels, president of Alliance for Marriage (AFM), a group that has urged Congress to approve a federal constitutional amendment limiting marriage to heterosexuals, said the debate over marriage “is going to come down to a race between AFM’s marriage protection amendment and the federal courts.”

He predicted that "all of these state marriage amendments are going to be struck down in federal court, they are all going to go the way of Nebraska. The folks filing these lawsuits are taking this to the level of the Constitution, and we have to meet them at that level if the values of most Americans — and the common-sense understanding of marriage as the union of male and female — are going to be protected under our laws.”

More limited interpretation
But Amy Miller of the Nebraska American Civil Liberties Union had a far more limited interpretation of the ruling.

“This decision doesn't mean that gay people can marry, get a civil union or a domestic partnership, but it guarantees gay people the right to lobby their state lawmakers for those protections," she said.

Evan Wolfson, executive director of Freedom to Marry, a group that advocates legal recognition of marriages between gay couples, praised Thursday’s ruling.

“The court was right to do what courts are supposed to do — guarantee each of us our right to equal justice under law and equal citizenship in our country and home state,” Wolfson said.

“Government has no business putting obstacles in the path of people seeking to care for one another under law, and the court correctly found that Nebraska's sweeping anti-gay constitutional amendment offended basic American values of fairness, equality, family protection and access to the government,” he added.