Marriage by same-sex couples (SSM)
Part 3: Early 2015-MAR: Nebraska:
More reactions to to the District Court ruling.
Opinions about the SSM marriage ban.
Video. Ruling appealed to 8th Circuit Court,
which implements stay on District Court. ruling.
Throughout this web site, the term "LGBT" refers to the
lesbian, gay, bisexual, transgender/transsexual community.
"SSM" refers to marriage by same-sex couples.
Early 2015-MAR: More reactions to to the District Court ruling in Waters v. Ricketts that legalized same-sex marriage in Alabama,
- Congressman Brad Ashford (D) issued a statement on same-sex marriage, saying:
"Discrimination against anyone based on their sexual orientation has no place in this country. Courts across the country are demanding equal treatment under the law, and today, Nebraska took a major stand against inequality in this country. This decision does not ask individuals to abandon their principles on the issue, but rather, to accept that this country is overwhelmingly diverse, and we must embrace those who might not hold our same beliefs. The many differences of individuals are what make this a great nation, and today’s decision recognizes that same-sex couples deserve equal rights under the law. I applaud this decision and commit to continue working for equality for all Nebraskans in the future." 1
- On MAR-02, the Nebraska Association of County Officials sent a letter to each of Nebraska's 93 county clerks explaining the situation, and the underlying state constitution and state statutes involved. Lancaster County Clerk Dan Nolte said that preparations in expectation of the District Court's ruling were already underway before the injunction was released. However Janene Bennett, the Ofte County Clerk, said that she would not issue a marriage license to a same-sex couple even if ordered to by a judge. 2
The 8th U.S. Circuit Court of Appeals has not yet responded to Peterson's request for an appeal of the case. The Court is already scheduled to hear appeals of three similar cases from Arkansas, Missouri, and South Dakota on MAY-11. Waters v. Ricketts may become the fourth.
Difference of opinion about the 2000-NOV amendment to the state Constitution:
The amendment banned marriages, civil unions, domestic partnerships or any other recognition of same-sex relationships within Nebraska. It also banned recognition of legal marriages that have been solemnized by same-sex couples out-of-state. It was passed by a 70% vote.
Governor Ricketts said in a news conference:
"The most relevant numbers are the 70% because that's the last time we voted on it. And as the Attorney General is pointing out that's the appropriate way to amend the constitution. As constitutional officers, he and I are both sworn to uphold the [state] constitution. And that's what we're here to tell you. That's what we're going to do." 3
In is ruling, Judge Bataillon also referred to the same 70% vote. He wrote:
"The Amendment is not somehow insulated from review because it was enacted by a significant majority. ... Minorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law." 3
Webmaster's note: (bias alert)
Judge Bataillon's oath of office requires him to obey and support the U.S. Constitution. Over 40 previous federal judges, and a smaller number of state judges, have examined very similar state bans on same-sex marriages. Essentially all have determined that the Due Process and/or Equal Protection clauses in the 14th Amendment to the U.S. Constitution require the federal, state and local governments to treat people, and thus couples, equally. Thus, if qualified opposite-sex couples are able to marry, so should same-sex couples be given the same right.
Pete Ricketts (R) has taken a similar oath of office.
This disagreement between state officials and the U.S. District Judge is caused by a fundamental difference that they sincerely believe about the structure of American government:
- In common with many religious and legal conservatives, the Governor and Attorney General appear to regard the United States as a pure democracy. Thus the will of the people is the ultimate authority in the state and country. Since the amendment to the state constitution that banned same-sex marriage was passed by 70% of the voters, then this decision is binding now and will remain so unless it is repealed or modified at some time in the future. Same-sex couples should not be allowed to marry in Nebraska.
- In common with the vast majority of constitutional experts, including U.S. District Judge Joseph Bataillon, the United States is a constitutional democracy. The federal Constitution is the ultimate authority in the state and country. Since the amendment to the Nebraska constitutional that bans same-sex couples from marrying violates the 14th Amendment to the U.S. Constitution, the state same-sex marriage ban is void and unenforceable. Same-sex couples should be allowed to marry in Nebraska.
It is important to remember that the amendment banning same-sex marriage in Nebraska was voted upon by the public during 2000-NOV -- almost a decade and a half ago. There has been a phenomenal increase in support for marriage equality since that vote was taken. Back during the year 2000, national polls showed that American adults were only about 35% in favor of marriage equality and 61% opposed. Today, the figures are reversed.
1011 News has provided the following excerpt from a video broadcast on 2015-MAR-03:
1011 News conducted a poll of its web site visitors, asking
"A federal judge ruled that Nebraska must recognize same-sex marriages. Do you support this decision?"
Results as of MAR-06 were: 54% Yes and 46% no, among the 3,960 responses. 4 This is quite close to values reported by recent national polls. However, that may be a fluke because the individuals who answered the polling question probably do not represent a random sampling of Nebraska adults.
2015-MAR-03: Attorney General filed appeal:
Attorney General Doug Peterson filed an appeal with the 8th U.S. Circuit Court of Appeals, requesting an emergency stay of the District Court ruling. He asked that it extend until the U.S. Supreme Court issues its decision in a pending consolidated case. That case involves same-sex marriage in four states: Kentucky, Michigan, Ohio, and Tennessee. The high court ruling is expected to define whether same-sex marriage is to be implemented across the entire U.S. The high court will hold hearings on APR-28, and will probably release its ruling during late June or early July.
"There is nothing to be gained from the confusion and potential litigation that will undoubtedly occur without a stay in the four months before this court or the Supreme Court resolves the constitutional questions presented." 5
2015-MAR-05: 2015-MAR-05: American Civil Liberties Union of Nebraska files brief with 8th Circuit:
The ACLU of Nebraska filed a brief opposing the Attorney General's request to extend the stay of the District Court's decision to legalize marriages by same-sex couples. It was scheduled to expire on the morning of MAR-09. The brief states that there are four criteria governing stays pending an appeal:
- Whether the individual or group requesting the stay is likely win the appeal,
- Whether the stay applicant will be irreparably injured if a stay is not issued,
- Whether the other parties in the case will be substantially injured if the stay is issued, and
- Where the public interest lies.
The ACLU brief notes that:
- Those District Courts in the 8th Circuit that have issued rulings on same-sex marriage bans have concluded that such bans are unconstitutional.
- The District Court concluded that the “... state has not demonstrated that it will be harmed, in any real sense, by the issuance of an injunction."
- The District Court concluded that the "... plaintiffs have shown they will suffer irreparable harm if the State is not enjoined from enforcing ..." the marriage ban." The ACLU brief listed many personal difficulties faced by the plaintiffs because their marriages were not recognized.
The ACLU concluded with a request:
"... that the State’s motion be denied so that they and same-sex couples across the State can start marrying and having their marriages recognized by the State on March 9." 6
2015-MAR-05: The 8th U.S. Circuit Court of Appeals implements stay on marriages by same-sex couples:
The 8th Circuit Court issued a one-paragraph decision late on MAR-05. It implements a stay on the District Court ruling in the case Waters v. Ricketts. Marriages by same-sex couples will thus not begin on MAR-09. 7 They gave no reason for their decision.
The court now has four same-sex cases before it, from Arkansas, Missouri, Nebraska, and South Dakota. In each case, a District Court has overturned a state ban on marriages by same-sex couples. Because of the four cases' similarities, the 8th Circuit has consolidated them. The court has scheduled hearings for the cases during the week of MAY-11. It is unknown whether the 8th Circuit can issue its ruling before the U.S. Supreme Court issues its decision. The high court is holding hearings on its consolidated case during APR-28, and is expected to issue its ruling in late June, or less likely in early July. The Supreme Court's ruling is expected to settle whether same-sex couples can marry across the nation. The high court's ruling will probably make the 8th Circuit's decision moot.
Latest status of same-sex marriage in the U.S.:
Including the District of Columbia, Nebraska would have been the 40th U.S. political jurisdiction where same-sex couples can marry as of 2015-MAR-09. 8 There would then be only 11 states left that would still deny same-sex couples the right to marry. The stay extension imposed by the 8th Circuit prevents them from marrying, for now.
Meanwhile, the U.S. Supreme Court has accepted appeals of same-sex marriage cases from four states: Kentucky, Michigan, Ohio and Tennessee. The high court is scheduled to hold hearings on 2015-APR-28 and issue its ruling in late June or early July. That ruling may legalize same-sex marriages across the U.S. just as a ruling by the same court did for interracial marriage in 1967. That case was appropriately called "Loving v. Virginia."
More developments are expected in the future.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- "Judge strikes down Nebraska's same-sex marriage ban, state appeals," KETV-TV, 2015-MAR-02, at: http://www.ketv.com/"
- Lauren Scott, "County Clerks React to Same-Sex Marriage Ruling," 1011 News, 2015-MAR-03, at: http://www.1011now.com/
- Lena Tillett & Joe Chiodo, "Federal Judge Lifts Ban On Same-Sex Marriage," WOWT-TV, 2015-MAR-03, at: http://www.wowt.com/
- "Attorney General Files Appeal on Federal Judge's Ruling to Lift Ban on Same-Sex Marriage," 1011 News, updated 2015-MAR-03, at: http://www.1011now.com/
- Robin Tysver, "End of gay marriage ban put on hold," World-Herald News Service, 2015-MAR-04, at: http://www.nptelegraph.com/
- "Opposition to motion to stay," ACLU of Nebraska, 2015-MAR-05, at: http://bloximages.newyork1.vip.townnews.com/
- Robin Tysver, "Same-sex marriages in Nebraska on hold after circuit court stays ruling," Omaha World-Herald, 2015-MAR-05, at: http://www.omaha.com/
- Some media sources say that Nebraska is the 38th state; a few say 39. The disagreement involves Missouri where same sex marriage licenses are available but only in one city and two counties.
Originally posted: 2015-MAR-06
Last updated 2015-MAR-06
Author: Alton Thompson