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Otoe County Clerk Janene Bennett in southeast Nebraska says she doesn’t think she could ever issue a marriage license to a gay couple, even if a judge ordered her to do so.
“I’m Catholic. I would talk this over with my parish priest to make sure it wasn’t morally wrong,” said Bennett, saying she would rather give up her job than violate her religious beliefs.
Hall County Clerk Marla Conley indicated she may not like it, but she will follow the law if the state’s same-sex marriage ban is overturned.
“I’m going to comply with whatever the law is. I may have a personal opinion, but that has no bearing on what is legal in the state of Nebraska,” she said.
County clerks, gay couples and others in Nebraska are preparing for a historic hearing Thursday in federal court in Omaha that could — depending on several legal factors — lead to same-sex marriage happening sooner rather than later in Nebraska.
Earlier this month, Alabama became the most recent state to allow gay marriage. The U.S. Supreme Court refused to stay a lower court’s ruling from taking effect that had overturned Alabama’s same-sex marriage ban.
In the wake of that ruling, dozens of county probate judges in Alabama refused to issue marriage licenses to gay couples. Some even closed their doors. They acted at the urging of Alabama Chief Justice Roy S. Moore, who argued they were not bound by the federal court’s ruling. District Judge Callie V.S. Granada clarified her order Thursday, ordering the probate judges to issue the licenses.
In Nebraska, U.S. District Judge Joseph Bataillon will be asked Thursday to overturn the state’s gay marriage ban. If he does, as many legal observers and others expect he will, based upon his past rulings, there will assuredly be gay couples lining up at the county courthouses to make history.
Judy Gibson and Barbara DiBernard of Lincoln say they’ve been waiting for more than a decade to tie the knot, and they plan to be one of the first couples in line.
Together for 26 years, they were one of the original couples who unsuccessfully tried to get Nebraska’s same-sex marriage ban overturned in 2003.
“We want to get married in our home state. And we really want the legal rights other married couples have in the state of Nebraska, including not paying the 18 percent inheritance tax,” said DiBernard.
Neither Gibson nor DiBernard expects to be in Bataillon’s courtroom Thursday, but they’ll be closely monitoring the case.
And, if allowed, they’ll get a marriage license as quickly as possible, said DiBernard.
No one knows when Bataillon will issue his ruling. But people on both sides of the issue point out that he already found that the ban was unconstitutional in 2006, although he was later overturned by the 8th U.S. Circuit Court of Appeals.
“If, in 2006, he thought that was a proper interpretation of the Constitution, his position is much stronger now that so many other judges — both state and federal — have taken that position,” said Michael Fenner, a constitutional law professor at Creighton University School of Law.
In the past two years, more than 60 state and federal judges have ruled in favor of same-sex marriage.
Most notably, the U.S. Supreme Court ruled in 2013 that the federal government must recognize same-sex marriages. The high court has since agreed to hear a case in April about whether states have the right to ban gay marriage. A ruling is expected by June.
A key question about the Nebraska case is whether Bataillon will “stay” his own decision, pending an appeal.
Some judges who have ruled against same-sex marriage bans have placed their orders on hold during the appeals process. But Bataillon is being asked to rule quickly because one of the plaintiffs in the case has cancer.
She has argued that she and her spouse would be “irreparably harmed” if she dies and the State of Nebraska does not honor their legal California marriage. She also argues that they should not have to wait until summer for a definitive ruling from the U.S. Supreme Court.
“(Bataillon) is in a very unusual position in terms of this case,” Fenner said. “Other judges can feel free to stay their decisions, pending the outcome of the Supreme Court case (this spring) because of the no-harm, no-foul rule. But in this case, he has a plaintiff where the loss would be permanent.”
Should Nebraska's ban on same-sex marriage be overturned?
Another key question is timing.
The state has said that it will quickly appeal if Bataillon overturns Nebraska’s marriage ban. But if he does not stay his own order, same-sex couples could seek marriage licenses before the state’s appeal is acted upon.
Last fall, a federal district judge in Indiana overturned that state’s marriage ban, allowing marriage licenses to be issued to same-sex couples immediately. Two days later, an appellate court stayed the order.
But during those two days, gay couples were allowed to marry in Indiana.
The same could happen in Nebraska, Fenner said, depending upon how quickly the 8th Circuit Court of Appeals rules on Nebraska’s expected appeal.
Fenner said that scenario could create its own problems.
“There is a certain unfairness to allowing people who raced to the courthouse to get married,” Fenner said, while other couples are later denied. “And then there are the questions of those who got married last week — are their marriages valid today?”
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