WASHINGTON — A federal judge struck down Nebraska's ban on same-sex couples' marriages on Monday — although the injunction requiring marriage equality does not go into effect until March 9.
"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," U.S. District Court Judge Joseph Bataillon wrote. "It is time to bring this unequal provision to an end."
State officials already filed a notice with Bataillon's court that they will be appealing the decision to the 8th Circuit Court of Appeals.
The 8th Circuit already has appeals pending of rulings striking down marriage bans in Arkansas, Missouri, and South Dakota. The court has tentatively scheduled arguments on those cases for the week of May 11.
Additionally, though, Nebraska officials stated in their notice of appeal that they "will be pursuing emergency relief in the Court of Appeals" — presumably a request that Bataillon's injunction be stayed pending the outcome of the state's appeal or of the pending appeals already before the appeals court.
It was not immediately clear from the other marriage cases how the 8th Circuit would deal with the issue in the Nebraska case.
The 8th Circuit has not faced a situation like that now coming to it from Nebraska. This is the first decision in the circuit in which the trial court judge's decision would allow — beginning March 9 — marriages to take place for same-sex couples during the state's appeal.
In Missouri, however, the same-sex couples challenging the ban asked the 8th Circuit to lift a stay put in place by the district court. The 8th Circuit denied the request, and the same-sex couples filed a second request to lift the stay on Feb. 9 — the day the U.S. Supreme Court denied a stay request made by state officials in Alabama's marriage case. The 8th Circuit is yet to rule on that request.
Read the injunction:
Nebraska state officials on Tuesday morning asked the 8th Circuit Court of Appeals to issue a stay of the district court's injunction until the pending marriage cases before the Supreme Court are decided or, "at minimum," until the appeal in the Nebraska case is resolved.
Nebraska Attorney General Doug Peterson, arguing for the state officials seeking a stay, writes that the injunction issued by U.S. District Court Judge Bataillon "is impressively vague and unspecific," stating that "it is unclear under the injunction’s terms whether a Nebraska state court judge ('all relevant state officials') must grant divorces or be subject to federal court contempt proceedings for not 'determining the rights . . . or benefits of marriage' for a same-sex couple married in another state."
Substantively, the state argues that a stay should be granted until the Supreme Court rules on the issue of same-sex couples' marriage rights in the pending cases on appeal from the 6th Circuit Court of Appeals.
Additionally, the state takes issue with the district court's reliance on the cancer diagnosis of one of the plaintiffs.
"[T]he district court’s conclusion that there is a 'real possibility' that Ms. Waters will not live to see the issue resolved is simply a 'possibility' which was not supported by any medical evidence," Peterson argues. "[I]n the event Sally dies during the pendency of this litigation but Appellees ultimately prevail, an amended death certificate would be available which would address this concern."
A stay, if granted, would mean same-sex couples would not be able to marry beginning March 9.