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Federal Judge Strikes Down Nebraska’s “Constitutionally Repugnant” Gay Marriage Ban

Pennsylvania gay marriage

A federal judge has ruled that Nebraska’s voter-approved ban on gay marriage is unconstitutional, raising the prospect of same-sex weddings beginning in the conservative midwestern state as soon as next week.

The Associated Press reports US District Judge Joseph Bataillon issued a preliminary injunction on behalf of seven same-sex couples in the state, which will take effect on March 9. Bataillon’s ruling states that “all relevant state officials are ordered to treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.”

Rejecting the state’s argument that the ban promotes family stability and reflects the will of the people of Nebraska—where two-thirds of voters approved Initiative 416, a 2000 constitutional amendment defining marriage as the union of one man and one woman, Bataillon noted that same-sex couples are denied medical and financial benefits that are available to heterosexual married couples, calling the discrimination they and their children suffer “constitutionally repugnant.”

“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 in his 34-page ruling

“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,” added Bataillon. “The plaintiffs have been denied the dignity and respect that comes with the rights and responsibilities of marriage.”

Bataillon previously struck down Nebraska’s same-sex marriage ban in 2006, but the US 8th Circuit Court of Appeals reinstated it the following year. Reuters reports state officials have once again appealed to that same court in a bid to thwart LGBT marriage equality from becoming law in the 38th US state, plus the District of Columbia.

“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,” Gov. Pete Ricketts, a Republican, said in a statement.

LGBT rights advocates hailed Judge Bataillon’s ruling.

“Today is a day for celebration. The love and commitment our clients share will finally be entitled to equality and respect in the eyes of the law,” said Danielle Conrad, executive director for the American Civil Liberties Union (ACLU) of Nebraska, which filed suit on behalf of the seven couples in Waters v. Heineman.

One of the plaintiffs, Sally Waters, was diagnosed with terminal breast cancer in 2013 and successfully argued that without formal legal recognition of her marriage to her spouse Susan, who she legally wed in California in 2008, she would not receive tax and Social Security benefits to help her ease the burden of caring for the couple’s children after her death. Susan would also be forced to pay an 18 percent inheritance tax on half the property they share, including their home.

Nick Kramer, another plaintiff in the case, told the AP he wanted to ensure his spouse Jason Cadek, is granted automatic custody rights over their adopted 3-year-old daughter should something tragic happen to him.

“We’re excited about this ruling and happy that Judge Bataillon decided that our family was worth recognizing,” said Kramer.

Opponents of equality, including major religious organizations, expressed their disappointment with the ruling.

“Marriage is between a man and a woman, and has as one of its principal purposes the procreation and rearing of children,” said the Roman Catholic Archdiocese of Omaha in a statement.

Archbishop George Lucas, Bishop James Conley and Bishop William Dendinger added that “marriage was established by God before the state and before the Church, and the vitality of both depends on the fruitful union of husband and wife.”

Same-sex marriage is currently legal in 37 states, Washington, DC and a handful of Native American tribal territories. In January, the US Supreme Court announced it will rule on the issue in late spring.

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