And Nebraska falls

Timothy Kincaid

March 2nd, 2015

US District Judge Joseph Bataillon has ruled that Nebraska’s ban on same-sex marriage violates the US Constitution.

Nebraska’s “Defense of Marriage” Constitutional Amendment, Section 29, is an unabashedly gender-specific infringement of the equal rights of its citizens. The State primarily offers as its rational basis for this gender-specific discrimination the encouragement of biological family units. The essence of this rationale has been rejected by most courts and by no less than the Supreme Court. With the advent of modern science and modern adoption laws, same sex couples can and do responsibly raise children. Unfortunately, this law inhibits their commendable efforts.

For the majority of married couples, those without children in the home, marriage is a legal and emotional commitment to the welfare of their partner. The State clearly has the right to encourage couples to marry and provide support for one another. However, those laws must be enforced equally and without respect to gender.

It’s interesting that Judge Bataillon noted that the majority of married couples do not presently have children in the home. I hadn’t really thought of that.

The judge has given the state a week to appeal.

IT IS ORDERED 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.

IT IS FURTHER ORDERED that this order will be effective on Monday, March 9, 2015, at 8:00 a.m. CDT

It is uncertain whether the Eighth Circuit will stay the ruling pending appeal. However, should they fail to do so, it is highly unlikely that the Supreme Court will issue a stay.

This leaves only North Dakota and Georgia without a federal ruling on the unconstitutionality of anti-gay marriage bans.


March 2nd, 2015

If no stay is issued, Nebraska will see marriage equality on the one-month-iversary of Alabama receiving the same.


March 3rd, 2015

Yes, it is a little recognized fact that married couples spend significant parts of their marriage without children in their home. A 50-year marriage will have 20 – 30 years with minor children in the home depending on when they start having children and how many they have. If marriage is primarily about raising children, then couples should be required to divorce within a year after their last child is emancipated. Carry this whole concept to it’s logical, natural conclusion — no children to raise, no marriage.

Eric Payne

March 3rd, 2015

Even mentioning “children” is a red herring, as there is no state which limits marriage rights to fertile couples, nor is there any state where a couple must produce/adopt children to keep their marriage license valid.

Civil marriage is a contract between two persons and the government where the two people agree to be a single legal unit with each individual bearing legal responsibility for the actions of either the individual or the couple, while having enhanced rights, individually, concerning the couple, collectively.


March 3rd, 2015

Eric, not only is fertility not required by any state, but some states require certain couples to be infertile to get married. Moreover, marriage assumes the government benefits from the contract you describe, whether children are raised or not, merely from the couples’ contribution to mutual welfare. We don’t have to make up things to see how marriage benefits the state.

Also, this:


March 3rd, 2015

IT IS ORDERED 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.

I’d like to draw your attention to the phrase in bold, from Judge Bataillon’s order. Does anyone else think this is an implicit recognition of the existence of non-binary (intersex and genderqueer) individuals?

Priya Lynn

March 3rd, 2015

” Does anyone else think this is an implicit recognition of the existence of non-binary (intersex and genderqueer) individuals?”.

Not me. I think if you’re not LGBT that’s unlikely to occur to you.

Regan DuCasse

March 4th, 2015

I would say that Nebraska has risen. From the ashes of discrimination, into the light of equal justice.

Regan DuCasse

March 4th, 2015

Since child free couples are more heavily taxed, and most often put in more working hours in comparison to their workplace colleagues with children, it’s quite obvious that the child free are making a contribution in the support and general welfare of society too.

Married, child free adults live longer, and have more robust sex lives and happier marriages than those with children, therefore their working years are longer to engage more of that general welfare.
I’m really sick of these discrimination defenses making child free adults out to be chopped liver. And their worth only in the issue of their genitals and reproductive organs, instead of heart, hands and minds.
Reproductive organs can lose function or be lost altogether.
While the heart, mind and hands continue to work and be productive.
The idiot logic of denying gay couples the right to marry on this basis, is not only illegal or non existent as a legal defense.
But the children of gay adults ARE the next generation also and aren’t so much chopped liver either.

Priya Lynn

March 4th, 2015

“I would say that Nebraska has risen. From the ashes of discrimination, into the light of equal justice.”.

Regan, I thought the same thing when I read the headline to this post.

And excellent points about child-free couples. With the population explosion on planet earth, having children is not automatically a good thing.

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