No immediate ruling from federal judge on Nebraska same-sex marriage ban

Updated: 9:00 p.m. CST

OMAHA, Neb. — The same sex-couples challenging Nebraska’s ban on gay marriage hope a federal judge will block it, but that won’t be the end of the fight because the state has promised to appeal.

Last month U.S. District Judge Joseph Bataillon (ruled against a state request to delay the lawsuit in Nebraska while the U.S. Supreme Court is considering the issue.

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At a hearing Thursday, the American Civil Liberties Union of Nebraska highlighted ways the seven couples who sued in November are harmed by the ban, especially when it comes to death benefits and health questions.

One of the lead plaintiffs, Sally Waters, has been diagnosed with terminal breast cancer. Unless the law changes, Waters and her spouse, Susan Waters, worry about losing Social Security benefits and having to pay an 18 percent inheritance tax.

“There are many other families that are suffering the same or worse,” ACLU lawyer Leslie Cooper said.

But the Nebraska Attorney General’s office said the court should respect the decision 70 percent of Nebraska voters made to enact the gay marriage ban in 2000.

“The ability to define marriage is uniquely given to the states,” state Attorney General Doug Peterson said.

The state’s attorney also said Nebraska has a legitimate interest in defining marriage as only between a man and a woman because the state wants to promote procreation.

U.S. District Judge Joseph Bataillon asked for both sides to submit additional information Monday, and he will rule sometime after that.

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Previously, Bataillon struck down Nebraska’s gay marriage ban in 2005 because he said it deprived gays and lesbians of participation in the political process. But that ruling didn’t stand because a federal appeals court reinstated the ban in 2006.

The state plans to appeal any decision blocking or overturning the voter-approved ban on gay marriage. Nebraska’s lawyer asked Bataillon to delay the effect of any ruling blocking the ban for at least 14 days, so the state will have an opportunity to appeal.

But any rulings in the Nebraska case are likely to be affected by a different case before the U.S. Supreme Court. The nation’s high court announced Jan. 17 that it would decide whether same-sex couples have a right to marry everywhere in the U.S. under the Constitution. A decision is expected by late June.