Finding that Nebraska’s constitutional amendment banning same-sex marriages violates the 14th Amendment’s Equal Protection Clause, Senior U.S. District Judge Joseph F. Bataillon granted a motion by seven same-sex couples to issue a preliminary injunction against its enforcement. [The case is Waters v. Ricketts, 2015 WL 852603, 2015 U.S. Dist. LEXIS 25869 (D. Neb., March 2, 2015).] While denying the state’s request to stay his order pending appeal, Judge Bataillon agreed to delay his ruling taking effect until 8 am on March 9 to give the state a chance to ask the 8th Circuit Court of Appeals for a stay. Nebraska Attorney General Doug Peterson filed a notice of appeal with the 8th Circuit shortly after the ruling was announced, indicating that the defendants (who include as well Governor Pete Ricketts, two cabinet members and a county clerk) would be asking the circuit court to issue a stay before March 9. The 8th Circuit responded on March 5, granting the stay without explanation.
It had seemed likely that the 8th Circuit would grant the state’s request. Appeals of marriage equality rulings from South Dakota, Missouri and Arkansas are now pending before the 8th Circuit, which set an expedited briefing schedule and will hear arguments on May 12. The district courts in those cases all stayed their rulings pending appeal. Unlike the 11th Circuit, which has announced that it will take no action on pending appeals of marriage equality rulings by Florida and Alabama until after the Supreme Court rules on the plaintiffs’ appeals of the adverse ruling by the 6th Circuit affecting the states of Michigan, Ohio, Kentucky and Tennessee, the 8th Circuit appears poised to move ahead on the marriage issue. Recently, that court rejected a request by counsel for the Missouri plaintiffs to lift the Missouri district court’s stay. In its March 5 Order, the court added the Nebraska case to the May 12 argument, setting a very tight briefing schedule for the parties.
Judge Bataillon, a former public defender who was appointed to the district court by President Bill Clinton in 1997 and took senior status in 2014, has a history with the marriage issue. He was the trial judge a decade ago when gay Nebraskans challenged the constitutionality of the state’s initiative marriage amendment the first time around, and he then ruled that it was unconstitutional, only to be rebuffed by the 8th Circuit in 2006, in a case titled Citizens for Equal Protection v. Bruning. The plaintiffs in that case were not claiming a constitutional right to marry under the 14th Amendment, however. Instead, they were challenging the idea that the people of Nebraska could amend their constitution specifically to prevent gay Nebraskans from seeking the right to marry through the ordinary political process of lobbying the legislature. They argued that this improperly excluded gay people from participation in the ordinary political process. The 8th Circuit, rejecting this argument, took note of the limited scope of their claim. That has persuaded district judges in Missouri, Arkansas and South Dakota that the 2006 ruling did not prevent them from addressing the 14th Amendment right to marry claim presented in the new marriage equality lawsuits filed after the Supreme Court’s 2013 ruling in U.S. v. Windsor.
Bataillon took the same view, and also joined with the dozens of district courts and four federal circuit courts that have rejected the argument that a 35-year-old refusal by the Supreme Court to review a marriage equality case from Minnesota, Baker v. Nelson, would now block a lower federal court from ruling for the plaintiffs on this issue.
Some recent marriage equality rulings have been grounded in the theory of a fundamental right to marry protected as a liberty interest by the Due Process Clause. Others have preferred to base their holding on the Equal Protection Clause, finding that the exclusion of same-sex couples is a form of unjustified discrimination, either based on sexual orientation, sex, or both. Bataillon preferred the equal protection route, although his opinion also discussed the due process argument.
Because he was deciding a motion for a preliminary injunction rather than issuing a final ruling on the merits, the judge’s discussion of the constitutional issues was focused on predicting what an eventual ruling on the merits might be. At this stage, the burden on the plaintiffs was to persuade him that they are likely to prevail when he makes a final ruling on the merits in response to a summary judgment motion. As to that, a simple process of counting decisions by other courts pro or con would easily suffice to meet the burden. Bataillon pointed out that the Supreme Court in U.S. v. Windsor (2013), striking down part of the federal Defense of Marriage Act, subsequent rulings by four U.S. Circuit Courts of Appeals, and the overwhelming majority of dozens of federal district court opinions, have all rejected the justifications that states have advanced for refusing to allow same sex couples to marry and refusing to recognize their out of state marriages. Stacked up against that, a mere handful of federal trial judges and one court of appeals (by a divided vote) have rejected plaintiffs’ claims. For purposes of prediction, that is sufficient to hold for the plaintiffs.
The court easily found that the other prerequisites for preliminary injunction relief were met, finding that the harms to plaintiffs massively outweigh potential harms to the state of ordering it to cease enforcing its ban.
Judge Bataillon drew heavily on the forceful marriage equality opinion by Judge Richard Posner of the 7th Circuit Court of Appeals in Baskin v. Bogan, which had focused particularly on the harms to children imposed by denying same-sex couples the right to marry. “In Baskin,” he wrote, “the Seventh Circuit rejected the rationale that same-sex couples and their children do not need marriage because same-sex couples cannot produce children, whether intended or unintended, as an argument ‘so full of holes that it cannot be taken seriously.'” He continued, “The Seventh Circuit found prohibitions on same-sex adoption particularly troubling. The refusal to allow same-sex couples to adopt ‘harms the children, by telling them they don’t have two parents, like other children, and harms the parent who is not the adoptive parent by depriving him or her of the legal status of a parent.'”
“An asserted preference for opposite sex parents does not, under heightened scrutiny, come close to justifying unequal treatment on the basis of sexual orientation,” wrote Bataillon. Furthermore, he embraced the view, previously adopted by a minority of the district court judges and by one concurring judge in the 9th Circuit, that the ban on same-sex marriage is a form of sex discrimination, meriting heightened scrutiny, without any need to find that sexual orientation discrimination claims also merit heightened scrutiny. “Under existing precedent,” he wrote, “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. The court finds it unnecessary, in light of this conclusion, to address the issue of whether the fundamental right to marry extends to same-sex relationships.”
In support of its argument that the same-sex marriage ban serves a legitimate state interest, Nebraska relied upon several widely-discredited “studies,” including two articles published by University of Texas Professor Mark Regnerus, disparaging the parenting skills of same-sex couples. Bataillon dispatched them in a footnote, observing that the federal district court in Michigan found them to be “unbelievable and not worthy of consideration,” characterizing them as a “fringe viewpoint that is rejected by the vast majority of [the studies’ authors’] colleagues across a variety of social science fields.” Why are state attorneys general continuing to cite such unreliable and vigorously disparaged publications? Aren’t they embarrassed to do so?
In common with many of the other district judges who have ruled on this issue over the past year and a half, Judge Bataillon rose to a vigorously stated conclusion. “Nebraska’s ‘Defense of Marriage’ Constitutional Amendment, Section 29, is an unabashedly gender-specific infringement of the equal rights of its citizens,” he wrote. “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 [in Windsor]. 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 is time to bring this unequal provision to an end.”
The plaintiffs are represented by the ACLU of Nebraska Foundation and the ACLU Foundation’s Lesbian and Gay Rights Project, with Omaha divorce attorneys Susan Koenig and Angela Dunn as local counsel. The ACLU attorneys working on the case include Amy Miller of the Nebraska affiliate, and Leslie Cooper and Joshua Block with the national organization.