U.S. District Judge Joseph Bataillon has struck down Nebraska's constitutional ban on same-sex marriage as well as the state's ban on adoption by same-sex couples, the Lincoln Journal Star's Lori Pilger reports. The judge also granted a preliminary injunction in favor of the plaintiffs.
"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," Bataillon opined. "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." The opinion can be read here: http://journalstar.com/links/online-exclusives/read-bataillon-s-order/pd...
Bataillon already struck down the ban before in 2005, but the U.S. Court of Appeals for the Eighth Circuit overturned his ruling. Bataillion's decision notes that the Eighth Circuit rejected the argument in the prior case that the Nebraska constitutional amendment violated the right of gay and lesbian Nebraskans to access the political process; the appeals court also found that strict scrutiny should not apply to gays and lesbians.
This time, Bataillon found that heightened scrutiny should apply to the ban because the "challenged amendment 'proceeds along suspect lines,' as either gender-based or gender-stereotype-based discrimination."
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