And this morning federal District Judge Joseph F. Bataillon struck down Nebraska's ban on same-sex marriage. writing:
Marriage is about more than procreation. The ostensible "procreative" purpose does not hold up in light of the situations presented by infertile, intentionally childless, or elderly couples, all of whom are allowed the benefits and responsibilities of a state-sanctioned marital relationship. Even if the State's purported justifications could be seen as important interests, a same-sex marriage ban is simply not substantially related to those interests.Full text of Judge Bataillon's ruling in Waters v. Ricketts here.
The court agrees with Judge Posner's statement in Baskin that "these cases are about discrimination against the small homosexual minority in the United States. But at a deeper level, as we shall see, they are about the welfare of American children." The State essentially pays lip service to marriage as an institution conceived for the purpose of providing a stable family unit, but it ignores the damage done to children by denial of the right to marry to numerous same-sex households.
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 has announced its intention to appeal to the Eight Circuit here. Unless the circuit or the Supreme Court issues a stay, Judge Bataillon's ruling will come into effect on March 9.
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