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

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

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

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

    I call my own shots, largely based on an accumulation of data, and everyone knows it.
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    Re: U.S. judge rules Nebraska same-sex marriage ban unconstitutional

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

    Quote Originally Posted by Redress View Post
    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.
    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.
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    Re: U.S. judge rules Nebraska same-sex marriage ban unconstitutional

    From that thread:
    Quote Originally Posted by americanwoman View Post

    Alright then, let's take another re-vote 15 years later and see now what the majority wants.
    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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    Re: U.S. judge rules Nebraska same-sex marriage ban unconstitutional

    Quote Originally Posted by Paschendale View Post
    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.
    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.
    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.
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    Quote Originally Posted by Fiddytree View Post
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    Re: U.S. judge rules Nebraska same-sex marriage ban unconstitutional

    Quote Originally Posted by Deuce View Post
    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.
    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.
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    Re: U.S. judge rules Nebraska same-sex marriage ban unconstitutional

    Quote Originally Posted by Deuce View Post
    Again and again, proponents of same-sex marriage bans simply cannot make a reasonable case for their personal beliefs to be law.
    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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    Re: U.S. judge rules Nebraska same-sex marriage ban unconstitutional

    Quote Originally Posted by JP Cusick View Post
    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.
    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.
    He touched her over her bra and underpants, she says, and guided her hand to touch him over his underwear
    Quote Originally Posted by Lutherf View Post
    We’ll say what? Something like “nothing happened” ... Yeah, we might say something like that.

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