In a historic opinion striking down Nebraska’s gay marriage ban, U.S. District Judge Joseph Bataillon saved his most pointed words to defend the rights of children being raised by two moms or two dads.

The judge said it was “repugnant” to believe that children of same-sex couples should have fewer legal protections than children born into a heterosexual marriage.

In Nebraska, same-sex couples cannot adopt children together because of the ban. That means, in the eyes of the law, the child is legally tied to only one parent.

“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” of same-sex couples, Bataillon wrote.

“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,” he added.

Bataillon struck down the state’s gay marriage ban Monday but stayed the implementation of his order for a week to give the state time to appeal.

It is now up to the 8th Circuit Court of Appeals to decide whether gay couples in Nebraska can wed next Monday. The state has asked the conservative-leaning 8th Circuit to put a hold on Bataillon’s ruling, pending its appeal.

Nebraska Attorney General Doug Peterson expressed hope the appellate court would act quickly and stop the issuance of same-sex marriage licenses.

“I’m hopeful, I don’t know if I can say the word confident, but I’m hopeful,” Peterson said.

Gov. Pete Ricketts called Bataillon an “activist judge” who was ignoring the will of Nebraskans.

Ricketts noted that Nebraskans approved the state’s constitutional ban against gay marriage in 2000 with 70 percent of the vote.

“The definition of marriage is an issue for the people of Nebraska, and an activist judge should not substitute his personal political preferences for the will of the people,” Ricketts said.

Peterson agreed with Ricketts that the best way to amend the state constitution is by a vote.

“I don’t think we can dictate our laws based on the emotional arguments of a certain class of people. We have to go through the proper constitutional process,” Peterson said.

Others took issue with Bataillon’s assertion that the ban constituted gender discrimination. The judge argued the ban prohibited a couple from getting married based solely on their gender.

“Despite Judge Bataillon’s insistence that Nebraska’s definition of marriage relies on ‘archaic and overbroad gender roles,’ the union of one man and one woman brings equality to society by emphasizing that both men and women are vital to a marital relationship,” the Nebraska Family Alliance argued in a press release.

Bataillon’s order wasn’t a surprise: He was the first federal judge to strike down a gay marriage ban 10 years ago. He was overridden by the 8th Circuit Court of Appeals.

The ruling also follows a national legal trend that began two years ago when the U.S. Supreme Court struck down the federal gay marriage ban, forcing the federal government to recognize same-sex unions.

In the past two years, 65 judges — including Bataillon — have ruled in favor of gay marriage. In all, 37 states allow gay couples to wed.

The ruling comes as the U.S. Supreme Court prepares to settle the issue of gay marriage once and for all. The high court has agreed to decide whether states have the right to ban same-sex marriages. A ruling is expected in June.

In this legal atmosphere, it is hard to predict how the 8th Circuit will rule on the state’s request for a stay, said Eric Berger, a constitutional law professor at the University of Nebraska School of Law.

The 8th Circuit upheld Nebraska’s gay marriage ban in 2006, but a lot has happened on the legal front since then, Berger noted.

“They really could go either way on it,” said Berger.

Berger predicted that the 8th Circuit will fold the Nebraska case into a consolidated gay marriage case involving Missouri, South Dakota and Arkansas. Judges in those states also struck down the states’ gay marriage bans but stayed their own orders.

It would make sense for Nebraska to be the fourth state involved in the case, set to be heard in Omaha on May 11, Berger said.

Danielle Conrad, executive director of the ACLU of Nebraska, declined to speculate on how the 8th Circuit Court would rule. But she predicted that victory would come, whether from the appeals court or the Supreme Court.

“The freedom to marry,” Conrad said, “will come to our citizens in some way, shape or form.”

Contact the writer: 402-444-1309, robynn.tysver@owh.com

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Timeline: Gay marriage in Nebraska

A look at important dates and rulings related to gay marriage in Nebraska

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