A federal judge made history yesterday, overruling Nebraska’s ban on gay marriage.
Judge Voids Same-Sex Marriage Ban in Nebraska (AP)
A federal judge on Thursday struck down Nebraska’s ban on same-sex marriage, saying the measure interfered not only with the rights of gay couples but also with those of foster parents, adopted children and people in a variety of other living arrangements. The amendment to the state’s Constitution, which defined marriage as a union between a man and a woman, was passed overwhelmingly by the voters in November 2000.
The Nebraska ruling is the first in which a federal court has struck down a state ban on same-sex marriage, and conservatives in the United States Senate pointed to it as evidence of the need for a federal constitutional amendment banning same-sex marriage. “When we debated the merits of a federal marriage amendment on the Senate floor, opponents claimed that no state laws were threatened, that no judge had ever ruled against state marriage laws,” said Senator John Cornyn, Republican of Texas. He added, “After today’s ruling, they can no longer make that claim.”
[…]
The judge in the Nebraska case, Joseph F. Bataillon of Federal District Court, said the ban “imposes significant burdens on both the expressive and intimate associational rights” of gay men and lesbians “and creates a significant barrier to the plaintiffs’ right to petition or to participate in the political process.” Judge Bataillon said the ban went “far beyond merely defining marriage as between a man and a woman.” He said the “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.”
Forty states have laws barring same-sex marriages, but Nebraska’s ban went further, prohibiting same-sex couples from enjoying many of the legal protections that heterosexual couples enjoy. Gay men and lesbians who work for the state or the University of Nebraska system, for example, were banned from sharing benefits with their partners.
I’m unsure which provision of the U.S. Constitution guarantees “intimate associational rights.” I haven’t seen the text of Bataillon’s ruling, if a written opinion even exists, but from the AP account, though, it appears that the Nebraska law had similar flaws as the Supreme Court found with Colorado’s in Romer v. Evans. I gather from the excerpt that he would not have found a problem with a more limited requirement that “marriage” be defined as it always has.
Update (1508): Julian Sanchez links to the text of the decision [PDF] and to Eugene Volokh‘s extensive and persuasive analysis as to why it is likely to be overturned.
