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U.S. judge rules Nebraska same-sex marriage ban unconstitutional

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Deuce

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U.S. judge rules Nebraska same-sex marriage ban unconstitutional | Reuters

Reuters) - A federal judge on Monday ruled Nebraska's ban on gay marriage unconstitutional in a decision that could allow same-sex couples to marry in the state within a week.
U.S. District Judge Joseph Bataillon issued a preliminary injunction in the case brought by seven same-sex couples in the state, calling Nebraska's ban an "unabashedly gender-specific infringement of the equal rights of its citizens."
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The order:
8:14-cv-00356 #54 - Nebraska Memo and Order

To the extent the State's position is that it has an interest in promoting family stability only for those children who are being raised by both of their biological parents, the notion that some children should receive fewer legal protections than others based on the circumstances of their birth is not only irrational — it is constitutionally repugnant.

The State's emphasis on a biological connection creates a further discriminatory classification drawing a distinction between biological and adopted children.
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The order also references one of my favorite judicial smackdowns in the history of this issue, Baskin v Bogan:

Indiana's government thinks that straight couples tend to be sexually irresponsible, producing unwanted children by the carload, and so must be pressured (in the form of governmental encouragement of marriage through a combination of sticks and carrots) to marry, but that gay couples, unable as they are to produce children wanted or unwanted, are model parents—model citizens really—so have no need for marriage. Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.
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Again and again, proponents of same-sex marriage bans simply cannot make a reasonable case for their personal beliefs to be law.
 
If there was a good reason to prohibit same sex marriages, it would have come up long ago. But no such reason has emerged. The debate is basically over, and has been for at least a year.
 
From the order:

Under existing precedent, Nebraska's same-sex marriage ban is at least deserving of heightened scrutiny because the challenged amendment proceeds "along suspect lines," as either gender-based or gender-stereotype-based discrimination.
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Zyphlin in part has persuaded me, and this could be what dooms SSM bans. If you take it as gender discrimination, that is that men can do something woman cannot, and woman can do something men cannot, then Intermediate Scrutiny is required and SSM bans fail. The various states have argued that SSM bans pass rational basis review and that is what would be applicable, because SSM bans would not pass higher levels of scrutiny. Going this route lets SCOTUS dodge issues such as whether orientation would be a basis for quasi-suspect class designation, or whether Strict Scrutiny should apply to questions of marriage as a fundamental right.
 
Redress said:
From the order:



Zyphlin in part has persuaded me, and this could be what dooms SSM bans. If you take it as gender discrimination, that is that men can do something woman cannot, and woman can do something men cannot, then Intermediate Scrutiny is required and SSM bans fail. The various states have argued that SSM bans pass rational basis review and that is what would be applicable, because SSM bans would not pass higher levels of scrutiny. Going this route lets SCOTUS dodge issues such as whether orientation would be a basis for quasi-suspect class designation, or whether Strict Scrutiny should apply to questions of marriage as a fundamental right.
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Actually, most of the courts that have struck down bans have found that they even fail rational basis. The sixth circuit decision is the only one that found otherwise, and basically did so by overtly ignoring the evidence and conclusions of the other courts. It basically had to decide, contrary to reality, that preventing gays from marrying somehow promotes procreation. This is obviously not true.

I actually don't think it will end up being about gender discrimination, especially since that immediately opens the door for more clarification being needed to address trans people or those who don't claim a gender identity at all. I think we'll end up with strict scrutiny protection, based on the right to marry from Loving. And I think that most cases have, thus far, avoided determining the appropriate level of scrutiny in anticipation of the supreme court doing so.
 
Paschendale said:
Actually, most of the courts that have struck down bans have found that they even fail rational basis. The sixth circuit decision is the only one that found otherwise, and basically did so by overtly ignoring the evidence and conclusions of the other courts. It basically had to decide, contrary to reality, that preventing gays from marrying somehow promotes procreation. This is obviously not true.
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Correct. That is why I highlighted the part of the order I did, as it was especially forceful on the subject as opposed to most rulings. Most rulings have been that while SSM probably should be subject to Strict Scrutiny as marriage is a fundamental right, it fails even Rational basis review. The problem with that argument is that while I agree SSM bans fail rational basis review, it still is a very low hurdle and the states interest does not have to be a good one, or based on good arguments, it only has to be legitimate, which is why I suspect SCOTUS will go to a higher level review. It is highly speculative at this point to even guess what SCOTUS will do however.

I actually don't think it will end up being about gender discrimination, especially since that immediately opens the door for more clarification being needed to address trans people or those who don't claim a gender identity at all. I think we'll end up with strict scrutiny protection, based on the right to marry from Loving. And I think that most cases have, thus far, avoided determining the appropriate level of scrutiny in anticipation of the supreme court doing so.
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Niether of those are it issue currently nor do I think there are any laws on the books based on those issues, so I think trans and gender identity issues as related to marriage is not going to be a concern to the court.
 
Deuce said:
From that thread:


Let's not. The constitution is the supreme law of the land. It doesn't matter that 51% of the population votes for a law if that law is unconstitutional.
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I was just kind of saying that in jest since they are appealing the lift of the ban by saying its what the people of Nebraska wanted from 15 years ago.
 
Deuce said:
Again and again, proponents of same-sex marriage bans simply cannot make a reasonable case for their personal beliefs to be law.
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The problem is that marriage was originally an institution of religion, and instead of the separation of church from State the States took over control of marriage away from religion thereby violating the institution, and after that then the State laws and Federal laws have no basis in morality and thereby the secular laws do not have any authority to say "no" to the same sex marriage.

It is a violation of the church by the State.

Of course we never see that position argued in the Courts.

All the State has is civil unions so calling a civil union as a marriage is just a play on words.

Of course now the Churches have mostly bowed to the demands and orders of the States and thereby the institution of marriage is violated.

The irony of it is that marriages for religious people and for natural partners was already being destroyed by the laws so letting the homosexuals have that dead institution of marriage is ironic since they are the only ones left in the USA who sees marriage as desirable or as valuable or as having any meaning.

A lot (if not most or all) of the States have local representatives who are trying to show their self to be politically against the same sex marriage in order to get that vote so they create those unsound laws which can never stand up in Court so THEN those representatives can pretend to be against it when really it is just a charade.
 
JP Cusick said:
The problem is that marriage was originally an institution of religion, and instead of the separation of church from State the States took over control of marriage away from religion thereby violating the institution, and after that then the State laws and Federal laws have no basis in morality and thereby the secular laws do not have any authority to say "no" to the same sex marriage.

It is a violation of the church by the State.

Of course we never see that position argued in the Courts.

All the State has is civil unions so calling a civil union as a marriage is just a play on words.

Of course now the Churches have mostly bowed to the demands and orders of the States and thereby the institution of marriage is violated.

The irony of it is that marriages for religious people and for natural partners was already being destroyed by the laws so letting the homosexuals have that dead institution of marriage is ironic since they are the only ones left in the USA who sees marriage as desirable or as valuable or as having any meaning.

A lot (if not most or all) of the States have local representatives who are trying to show their self to be politically against the same sex marriage in order to get that vote so they create those unsound laws which can never stand up in Court so THEN those representatives can pretend to be against it when really it is just a charade.
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It's not a violation, nobody took over anything. You've always been able to have a private religious ceremony for whatever you like. Your church can marry two dogs if it wants to, but the government isn't going to recognize it.
 
Deuce said:
It's not a violation, nobody took over anything.
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It is troubling that you do not know the difference between violate and taking over, and that is a huge sign that you lack personal boundaries.

It would be like owning property / or land, and some one drives over top of your land everyday without your permission so that it cuts tracks as a rough road into your land so the land is violated but not taken over, and the police (the State) empowers those who drive over your land (your Church) even after you said not to do that.

As such the Churches said "no" to the same-sex marriages (their land) but the State law forced that the Churches could not stop that violation.

So the Churches are not taken over as the Churches are only violated.

The separation of Church from State has been violated because the State has taken control over the religious Institution of marriage.

Deuce said:
You've always been able to have a private religious ceremony for whatever you like. Your church can marry two dogs if it wants to, but the government isn't going to recognize it.
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Clearly you show a lack of respect for the churches and or for religion, because the Churches would never marry two dogs.

While only the government can recognize the union of two dogs, and the government is the only one who can empower the marriage of two dogs.
 
Marriage is not a solely religious institution and never has been.
 
Kobie said:
Marriage is not a solely religious institution and never has been.
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Maybe not solely religious but it was always religious - until now when the State violated the religious Institution.

The various governments did step into marriage from the beginning of governments, but marriages NEVER happened without religion included.

The separation of Church from State is now officially violated.
 
JP Cusick said:
Maybe not solely religious but it was always religious - until now when the State violated the religious Institution.

The various governments did step into marriage from the beginning of governments, but marriages NEVER happened without religion included.

The separation of Church from State is now officially violated.
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Which governments?

(You're fractally wrong, btw)
 
JP Cusick said:
The problem is that marriage was originally an institution of religion, and instead of the separation of church from State the States took over control of marriage away from religion thereby violating the institution, and after that then the State laws and Federal laws have no basis in morality and thereby the secular laws do not have any authority to say "no" to the same sex marriage.

It is a violation of the church by the State.

Of course we never see that position argued in the Courts.

All the State has is civil unions so calling a civil union as a marriage is just a play on words.

Of course now the Churches have mostly bowed to the demands and orders of the States and thereby the institution of marriage is violated.

The irony of it is that marriages for religious people and for natural partners was already being destroyed by the laws so letting the homosexuals have that dead institution of marriage is ironic since they are the only ones left in the USA who sees marriage as desirable or as valuable or as having any meaning.

A lot (if not most or all) of the States have local representatives who are trying to show their self to be politically against the same sex marriage in order to get that vote so they create those unsound laws which can never stand up in Court so THEN those representatives can pretend to be against it when really it is just a charade.
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1. Churches are not being forced to perform religious ceremonies for same-sex religious marriages.

2. Churches (and other religious organizations) have been VOLUNTARILY performing same-sex religious marriages for a long time.



>>>>
 
JP Cusick said:
The problem is that marriage was originally an institution of religion, and instead of the separation of church from State the States took over control of marriage away from religion thereby violating the institution, and after that then the State laws and Federal laws have no basis in morality and thereby the secular laws do not have any authority to say "no" to the same sex marriage.

It is a violation of the church by the State.

Of course we never see that position argued in the Courts.

All the State has is civil unions so calling a civil union as a marriage is just a play on words.

Of course now the Churches have mostly bowed to the demands and orders of the States and thereby the institution of marriage is violated.

The irony of it is that marriages for religious people and for natural partners was already being destroyed by the laws so letting the homosexuals have that dead institution of marriage is ironic since they are the only ones left in the USA who sees marriage as desirable or as valuable or as having any meaning.

A lot (if not most or all) of the States have local representatives who are trying to show their self to be politically against the same sex marriage in order to get that vote so they create those unsound laws which can never stand up in Court so THEN those representatives can pretend to be against it when really it is just a charade.
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sorry but this is completely false since churches are still free to marry who ever they want the made up story in your posts loses to that fact. :shrug:
 
JP Cusick said:
Maybe not solely religious but it was always religious - until now when the State violated the religious Institution.

The various governments did step into marriage from the beginning of governments, but marriages NEVER happened without religion included.

The separation of Church from State is now officially violated.
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and yet you cant offer one fact that supports your false claim . . . not one
 
The national battle over gay marriage rages on. Hardly a day goes by without yet another legal skirmish somewhere; the most recent one is in Nebraska, I think.

Allow me to break apart this thing we call "marriage". There are really at least two separate aspects:

First there is the love, sex, and romance aspect. To be blunt, the government has no business here. Nothing in the history books, nor the Declaration of Independence, nor the Constitution, nor the Bible remotely suggest that love, sex, and romance should have governmental oversight.

The second aspect is the legal contract. This contract, signed by both parties, covers matters such as inheritance, survivor benefits, medical decisions, and such. Now it can be argued that government does have role in the enforcement of legal contracts. And I have no problem at all if two, or more, people of ANY relationship choose to enter unto a binding legal contract covering matters like inheritance and such.

The problem arises when said legal contract includes the word "marriage", because by word association, we're now getting into matters of love, sex, and romance, which are clearly out of governmental jurisdiction.

Therefore the solution to this whole same-sex marriage dilemma is obvious: just re-name the darned contract. Call it something that does not include the word "marriage." The name "civil union" has been proposed; sounds Ok by me. And anybody who wants one can have one!

Meanwhile, keep "marriage" about love, sex, and romance, and if two (or more) people want to participate in it, well that's between them, and their God, assuming they believe in God and so choose to involve him too. But keep government out of it.
 
Kobie said:
Which governments?

(You're fractally wrong, btw)
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Factually wrong before I give the answer - kind of demonstrates your intentions.

A huge turning point was Henry the 8th of England as the Church would not give him a religious divorce so he broke with that Church in order to divorce and to marry under the authority of the new State religion, and that marked a huge beginning to the violation of the Institution of marriage by the State gov.

But here lets stick to the USA government and the 50 States.

People in the "New World America" did not have much of any government and often the only government was the election of a local Sheriff, but the people still got married, and often times the only preachers was whoever could read the Bible as a person who could read the Bible was rare up to the turn of the 20th century and beyond in much of the old USA. So American marriages were just religious marriages and when a local government (or a State gov) was finally created then the State recorded the marriages and in time the State created a tax on marriages and that tax was called a "Marriage License".

The State tax of a "Marriage License" is what undermined and violated the religious authority of the Church and of religion, and that State License is the only thing that now empowers the same sex marriages.


==============================================


WorldWatcher said:
1. Churches are not being forced to perform religious ceremonies for same-sex religious marriages.

2. Churches (and other religious organizations) have been VOLUNTARILY performing same-sex religious marriages for a long time.
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It is just a matter of time till the laws force all of the Churches, and I believe the force has already begun.

The idea is to make the Church marriages to look VOLUNTARY when the Church is not allowed to refuse.

The pressure has already begun.
 
JP Cusick said:
It is just a matter of time till the laws force all of the Churches, and I believe the force has already begun.

The idea is to make the Church marriages to look VOLUNTARY when the Church is not allowed to refuse.

The pressure has already begun.
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Societal pressure is not the same as government intervention, nor is it a violation of the separation of church and state.
 
JP Cusick said:
It is just a matter of time till the laws force all of the Churches, and I believe the force has already begun.

The idea is to make the Church marriages to look VOLUNTARY when the Church is not allowed to refuse.

The pressure has already begun.
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Can you provide any historical evidence where the force of government, in this country, was used to:

1. Force a Church to perform an interfaith religious marriage ceremony when such a ceremony was against the dogma of that Church?

2. Force a Church to perform an interracial religious marriage ceremony when such a ceremony was against the dogma of that Church?

3. Force a Church to perform a religious marriage ceremony when one (or both) of the participants were divorced and when such a ceremony was against the dogma of that Church?

4. And since Same-sex Civil Marriage has been legal in this country for over a decade, force a Church to perform a same-sex religious marriage ceremony when such a ceremony was against the dogma of that Church?​


Congregations are able to setup whatever rules their Church will function under, that is not "government force" when those who attend a Church accept same-sex religious marriage.


>>>>
 
Kobie said:
Societal pressure is not the same as government intervention, nor is it a violation of the separation of church and state.
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When the societal pressure is from a massive bigotry against religion then the government's failure to protect or defend the religion from the mob means that the government is intervening on the side of that mob.

Also and specifically that societal pressure based on its massive bigotry against religion is empowered by the government who has taken control of the institution of marriage by the violation of the Church by the State.

There would not be any social pressure except by the brute force backing of the government.

If this is not violating the separation of the Church by the State then those words have no meaning at all.
 
WorldWatcher said:
Can you provide any historical evidence where the force of government, in this country, was used to:

1. Force a Church to perform an interfaith religious marriage ceremony when such a ceremony was against the dogma of that Church?

2. Force a Church to perform an interracial religious marriage ceremony when such a ceremony was against the dogma of that Church?

3. Force a Church to perform a religious marriage ceremony when one (or both) of the participants were divorced and when such a ceremony was against the dogma of that Church?

4. And since Same-sex Civil Marriage has been legal in this country for over a decade, force a Church to perform a same-sex religious marriage ceremony when such a ceremony was against the dogma of that Church?​
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All of that is irrelevant.

WorldWatcher said:
Congregations are able to setup whatever rules their Church will function under, that is not "government force" when those who attend a Church accept same-sex religious marriage.
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Some congregations are democratic but not all, and the largest congregations are not democratic or else a very limited democracy.

Plus no Church or religion in the USA is immune to the immoral demands made by the US Supreme Court which outlaws any discrimination based on sexual orientation and its demand that same sex marriages are Constitutional.

So pretending that the so called "congregation" is functioning independently from the government or the laws is just absurd.
 
JP Cusick said:
1.)All of that is irrelevant.
2.)Plus no Church or religion in the USA is immune to the immoral demands made by the US Supreme Court which outlaws any discrimination based on sexual orientation and its demand that same sex marriages are Constitutional.
.
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1.) translation: you can't refute it and know it defeats your false claims
2.) actually all churches are because they have nothing to do with legal marriage, do you live in america?

can you post ONE fact that supports your claims? one
 
NonConformer said:
1.)The national battle over gay marriage rages on. Hardly a day goes by without yet another legal skirmish somewhere; the most recent one is in Nebraska, I think.

Allow me to break apart this thing we call "marriage". There are really at least two separate aspects:

2.)First there is the love, sex, and romance aspect. To be blunt, the government has no business here. Nothing in the history books, nor the Declaration of Independence, nor the Constitution, nor the Bible remotely suggest that love, sex, and romance should have governmental oversight.
3.)The second aspect is the legal contract. This contract, signed by both parties, covers matters such as inheritance, survivor benefits, medical decisions, and such. Now it can be argued that government does have role in the enforcement of legal contracts. And I have no problem at all if two, or more, people of ANY relationship choose to enter unto a binding legal contract covering matters like inheritance and such.
4.)The problem arises when said legal contract includes the word "marriage", because by word association, we're now getting into matters of love, sex, and romance, which are clearly out of governmental jurisdiction.
5.)Therefore the solution to this whole same-sex marriage dilemma is obvious: just re-name the darned contract. Call it something that does not include the word "marriage." The name "civil union" has been proposed; sounds Ok by me. And anybody who wants one can have one!

Meanwhile, keep "marriage" about love, sex, and romance, and if two (or more) people want to participate in it, well that's between them, and their God, assuming they believe in God and so choose to involve him too. But keep government out of it.
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1.) its actually a battle over equal rights. SSM is just a large front of it
2.) good thing government is NOT doing the oversight of this. That strawman fails
3.) correct legal marriage is a legal contract
4.) this is not reality, its not a problem to anybody but bigots and those that are against equal rights. Marriage is the name of the legal contract. no problem at all.
5.) there is 100% no need to rename it nor does it make any sense to rename it. That would be a waste of time, money and a total smack in the face to equal rights.

renaming it would be giving into bigots and sacrificing equal rights. . . no thanks

not to mention the vast majority of states that violated the constitution and banned SSM asl banned same sex civil unions, domestic partnerships and in some cases any relations that resemble them.

SO that also destroies your false theory its just about marriage, its about bigots trying to control those they dont agree with and luckily equal rights are winning.
 
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