Federal Judge Voids Nebraska Gay Marriage Ban

A federal judge made history yesterday, overruling Nebraska’s ban on gay marriage.

Judge Voids Same-Sex Marriage Ban in Nebraska (AP)

A federal judge on Thursday struck down Nebraska’s ban on same-sex marriage, saying the measure interfered not only with the rights of gay couples but also with those of foster parents, adopted children and people in a variety of other living arrangements. The amendment to the state’s Constitution, which defined marriage as a union between a man and a woman, was passed overwhelmingly by the voters in November 2000.

The Nebraska ruling is the first in which a federal court has struck down a state ban on same-sex marriage, and conservatives in the United States Senate pointed to it as evidence of the need for a federal constitutional amendment banning same-sex marriage. “When we debated the merits of a federal marriage amendment on the Senate floor, opponents claimed that no state laws were threatened, that no judge had ever ruled against state marriage laws,” said Senator John Cornyn, Republican of Texas. He added, “After today’s ruling, they can no longer make that claim.”


The judge in the Nebraska case, Joseph F. Bataillon of Federal District Court, said the ban “imposes significant burdens on both the expressive and intimate associational rights” of gay men and lesbians “and creates a significant barrier to the plaintiffs’ right to petition or to participate in the political process.” Judge Bataillon said the ban went “far beyond merely defining marriage as between a man and a woman.” He said the “broad proscriptions could also interfere with or prevent arrangements between potential adoptive or foster parents and children, related persons living together, and people sharing custody of children as well as gay individuals.”

Forty states have laws barring same-sex marriages, but Nebraska’s ban went further, prohibiting same-sex couples from enjoying many of the legal protections that heterosexual couples enjoy. Gay men and lesbians who work for the state or the University of Nebraska system, for example, were banned from sharing benefits with their partners.

I’m unsure which provision of the U.S. Constitution guarantees “intimate associational rights.” I haven’t seen the text of Bataillon’s ruling, if a written opinion even exists, but from the AP account, though, it appears that the Nebraska law had similar flaws as the Supreme Court found with Colorado’s in Romer v. Evans. I gather from the excerpt that he would not have found a problem with a more limited requirement that “marriage” be defined as it always has.

Update (1508): Julian Sanchez links to the text of the decision [PDF] and to Eugene Volokh‘s extensive and persuasive analysis as to why it is likely to be overturned.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. spaceman says:

    You won’t hear much about this in the MSM except a short canned piece, then no more. Timing is bad with Bush trying to get his “conservative” judges appointed. Aka, those that prefer not to make law.

  2. jwbrown1969 says:

    How be we impeach these judges before they start ruling the U.S. Consistution is unconstitutional.


  3. Anderson says:

    JW’s enthusiasm for impeaching mistaken judges is commendable, if his goal is to eliminate 99% of the judges in the United States.

    The Nebraska judge’s op will be swiftly and thoroughly reversed on appeal, which is how the system is supposed to work.

    “Intimate association” has an uncertain but real pedigree, as in the cases holding that parents have the right to educate their children as they see fit—not, surely, something that the conservatives wish to see overturned. This theory was the logical basis for the “gay scoutmaster” decision a few years back, but I think the Court’s hostility to the theory led it to rely on “expressive association,” which made little sense in context & is now giving some trouble in the Solomon Amendment case (with the universities trumpeting their right to restrict their associations with anti-gay groups lest their “expression” of anti-gayness be inferred).

  4. Ken says:

    “I’m unsure which provision of the U.S. Constitution guarantees “intimate associational rights.””

    James, this is a perfect example of the difference between a liberal and a so called conservative. The ninth admendment specifically says that rights do not have to be enumerated by the constitution in order to be rights held by the people. If you do not see that ‘intimate associational rights’ are inherent in your being a human being the more is the pity. You would allow the government to take away your rights to marry whatever other consenting adult would have you. I would not.

  5. herb says:

    When are the vast majorty of Americans going to get smart and start demanding that these Federal Judges that rule against the will of the people, be Impeached. When are we going to tell our “Senators and Reps”., that they had best get off their rear ends and get these Judges out.

    The truth is: Americans will let it go on and on and will wake up some day and find out that Judges rule our counrty. Just think back a couple of months ago when we let 3 Federal Court Judges and a Supreme court Judge VIOLATE the law and neither the MSM, the blogers, Our Congress and our Justice department did a damned thing about it.

    Shame, Shame on us.

  6. James Joyner says:

    Ken: Once again, I would point out the 9th Amendment was a guarantee that the FEDERAL GOVERNMENT would not encroach on unenumerated other rights. Madison and others contended that the enumeration of rights might lead to the implication that those are the ONLY rights protected. In actuality, the understanding was almost precisely the opposite: Unless the Constitution specifically delegated to the federal government the power to do something, it was presumed that they did not have authority in that area.

    The primary amendment in the federal Constitution that directly impacts the states is the 14th.

  7. Anderson says:

    When are the vast majorty of Americans going to get smart and start demanding that these Federal Judges that rule against the will of the people, be Impeached. When are we going to tell our “Senators and Reps”., that they had best get off their rear ends and get these Judges out.

    This has the dubious merit of being less intelligent than anything in the Nebraska judge’s opinion. Any judge who rules contrary to the wishes of 50.000001% of “the people” is subject to removal. Great. Any “conservatives” want to talk to Herb about this?

  8. James,

    This could be upheld for the same reason that Boy Scouts can exclude gay Scoutmasters: expressive association. But, it seems like an awful stretch to me since we aren’t talking about imprisoning people for being homosexual or, for that matter, even taking away their right to contract, which allows them to create whatever kind of relationship they want.

    I like Volokh’s interpretation and hope the case is overturned immediately, if not sooner.

  9. Of course, any fundamental liberty guaranteed by the 9th Amendment is also required to be respected by the states by the 14th Amendment… the right to travel, for example, is an unenumerated 9th Amendment right that the states must respect due to the due process guarantee of the 14th (see e.g. Saenz v. Roe).

    Presumably if there were an unenumerated right to “intimate association” guaranteed by the 9th Amendment, the logic of Saenz would apply and the states would have to respect it unless this liberty was somehow not “fundamental.”

  10. James Joyner says:

    Robert: One would think the rationale would work the other way. The citizenry has defined “marriage” and wishes to preclude arrangements that violate the definition.

    Chris: The Supreme Court is often, if not routinely, wrong. That vision of the 14th is so obviously out of whack with what its framers intended. Indeed, the great irony of the 14th is that it took nearly a century for the courts to uphold its plain meaning and intent (i.e., black people are to be treated as equals under the law) but only a quarter century for the courts to invent all sorts of things for the 14th to accomplish clearly outside its scope.

  11. Ken says:

    James, so you are saying that any fundemental human right that is not specifically enumerated in the US constitution can be denied by any of the states if they so chose. That is not only lunacy, it is also unconstitutional.

  12. McGehee says:

    And Ken is the expert on lunacy…

  13. drew says:

    Several posters here don’t understand how the law works. A judge must preside over the arguments presented and the Constitution. The Judge struck down the Nebraska Constitution just as previous judges struck down Jim Crow laws. (For example, Georgia’s constitution has been struck down numerous times.) Those upset about “activist” judges simply do not understand the grievances gays and lesbians are presenting to the Courts. If gays can form companies, join organizations, start limited liability companies, why can’t they form marriages? The Judge asked what was the state’s rational to prevent gays from entering marriage and found no argument was offered. Hence, virtually all the US constitutional arguments presented wipe out what Nebraska voters put in the Constitution. Remember, we are a democratic REPUBLIC. The will of the majority can not wipe out the rights of the minority and the individual.

  14. John says:

    As someone who tends to be liberal on social issues, I’m pleasantly surprised to see the noticeable difference between certain kinds political Conservatives (with a capital “C”).

    I see those who are social conservatives first and true conservative “constructionists” second and vice-versa. Personally, I wish the latter prevailed on the Right these days. Our national discourse would benefit greatly.

    Judges, though fallible, know the law and the constitution better than most if not all of the people on these threads…regardless of who appointed them. I would be curious to see who appointed this judge and intend to find out. It wouldn’t surprise me if he (or she) is a Bush 1 or Reagan appointee. It’s worth noting that the judges who did make headlines in the Schiavo case and the story of the murdered family were Republican appointees who held up the constitution as they saw it.

    Talk of impeachment is nonesense as some true conservatives have pointed that out. Judges act outside of the pressure of public opinion. This is how it should be. When stories like this make headlines and go against what the reader wants, the reader needs to try to understand the basis of ruling before resorting to blind partisan bickering and talking points.