Judge strikes down Nebraska gay marriage ban

WASHINGTON - 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.”

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