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Nebraska marriage case to move forward as federal judge denies motion to stay

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A federal district court judge in Nebraska has denied the state’s request to put proceedings in the challenge to its marriage ban on hold pending the outcome of Supreme Court review of the issue.

The ruling means the judge will consider a preliminary injunction striking down the ban as unconstitutional:

In November, seven same-sex couples sued Nebraska’s governor, attorney general and other state officials, as well as Lancaster County Clerk Dan Nolte, seeking the right to marry in Nebraska or to have their marriages in other states recognized in Nebraska.

Attorneys Susan Koenig of Dunne Divorce Law of Omaha and Amy Miller of the ACLU of Nebraska sought a preliminary injunction, that, if successful, would force the state to grant the licenses, arguing that the couples’ constitutional rights are being violated every day the state ban stands.

The hearing on the injunction, which had been canceled, is now set for February 19.

Thanks to Equality Case Files for these filings


  • 1. Jaesun100  |  January 27, 2015 at 5:01 pm

    Looks like the judge in NE wants a chance to rule 🙂

  • 2. DrBriCA  |  January 27, 2015 at 8:54 pm

    Would've been even sweeter if he'd ruled without oral arguments! But should be a good opinion coming up!

  • 3. Wolf of Raging Fires  |  January 28, 2015 at 8:41 am

    I believe a preliminary injunction can be issued before oral arguments? Am I right on that?

  • 4. VIRick  |  January 28, 2015 at 1:13 pm

    Wolf, you're correct. Judge Bataillon won't need to hear any oral arguments. He's heard it all before, in the "Bruning" case, when he struck down the same Nebraska constitutinal ban in 2005.

    Check my Nebraska time-line further down in this thread. The next hearing date is scheduled as a hearing on the issuance of a preliminary injunction.

  • 5. 1grod  |  January 27, 2015 at 5:03 pm

    As I recall, contributors to this blog were disappointed when it appeared that Judge J Bataillon was not proceeding with a hearing. Hearing this case with the stated intention of issuing a decision, the 1st preparing to hear the Puerto Rico case, and the two decisions in Alabama might encourage the Judges in the 5th Circuit to issue their decision as well. Can ME states reach 40 by the time of the Supreme Court hearing?

  • 6. netoschultz  |  January 27, 2015 at 5:42 pm

    Arkansas, Texas, Louisiana, Mississippi, Alabama, Nebraska

    I think its possible

  • 7. F_Young  |  January 27, 2015 at 6:00 pm

    Anti-LGBT forces strike back with religious freedom bills

    This is a very useful summary of anti-gay bills pending in the various states, as well as laws that have already passed.

    Unfortunately, it adopts the anti-gay "religious freedom" terminology instead of the more accurate "special right to discriminate" terminology.

  • 8. RnL2008  |  January 27, 2015 at 9:07 pm

    All of these bills have one thing in common and which makes them ALL unconstitutional in my opinion and that common link is that they ALL clearly show the ANIMUS towards a group of individuals SOLELY on who they are and who they love and married to…….if according to SCOTUS DOMA was NOT signed into law because folks hated Gays and Lesbians…..these new bills DEFINITELY will and that alone makes them UNCONSTITUTIONAL!!

  • 9. OrvilleKlutz  |  January 28, 2015 at 12:33 pm

    Get out the trash bin to put these bills in as they are stupid and have no real bearing on freedom of religion. Marriage Equality is a civil, equal right for all of Americans regardless of their beliefs. Marriage licenses are obtained at civil institutions such as a court house, town hall, etc. not a church.

  • 10. RnL2008  |  January 28, 2015 at 12:38 pm

    I totally agree and if we haven't proven before the animus that these anti-gay folks have towards us, these bills certainly will…..because they clearly are NOT about anything but writing in hateful discrimination towards American Citizens!!!

  • 11. OrvilleKlutz  |  January 28, 2015 at 1:06 pm

  • 12. Mike_Baltimore  |  January 28, 2015 at 1:40 pm


    You need to type your comment, THEN hit the 'Submit Comment' button.

    Then again, maybe we don't want to read you comments based on the placement of your blank attempts at comment.

  • 13. OrvilleKlutz  |  January 28, 2015 at 1:48 pm

    Sorry, I accidentally hit the reply to.the email I got from But then you read my original comments. :>)

  • 14. VIRick  |  January 28, 2015 at 2:10 pm

    Orrville, were you trying to live up to your surname?

  • 15. hopalongcassidy  |  January 28, 2015 at 12:39 pm

    Of course, that's why these proposed laws amount to nothing more than an end run around ME…they are just aimed at revenge and will be supported by a few (sadly more than a few in Oklahoma) sore losers who are lashing out the only way they know. It could be that one or more of the new laws actually pass and will stay on the books for who knows how long…even if they can't be enforced. Hell hath no fury like a homophobe scorned.

  • 16. Sagesse  |  January 28, 2015 at 1:04 pm

    It's more than just ME, although that's the stated excuse. These religious freedom laws are aimed at any LGBT rights protections. In a state that has ME but not broader protection for LGBT rights, I would imagine it will stop dead in its tracks any attempt to pass them, since all the effort will go into debating and fighting the 'religious freedom' laws that come three or four at a time. Hard to do that AND pass anti-discrimination legislation, all in the same session.

    I know it's silly, but I'm waiting for some state to put an LGBT 14th amendment to the state constitution on the ballot in 2016 to bring out the Democratic vote…

  • 17. hopalongcassidy  |  January 30, 2015 at 10:29 am

    Unfortunately, in Oklahoma Democrats outnumber Republicans significantly but vote more like GOTPers than regular GOPers do most other places….hell, they usually vote against their own nominees in general elections. Bah.

  • 18. Zack12  |  January 30, 2015 at 10:37 am

    That is starting to change.
    Many Democrats are switching over to the Republicans they truly are.

  • 19. hopalongcassidy  |  January 30, 2015 at 3:13 pm

    Of course. A rose – or a turd – by any other name would smell….etc. as Bill Shakespeare, or Juliet, may have meant even if they didn't quite say it that way.

  • 20. OrvilleKlutz  |  January 28, 2015 at 1:07 pm

  • 21. OrvilleKlutz  |  January 28, 2015 at 1:51 pm

    Well Orville, you screwed up again! :>)

  • 22. sfbob  |  January 28, 2015 at 2:03 pm

    It might be more accurate to say that because marriage is regulated by state government, licenses should be issued only by agencies of the state, whether those be county clerks, surrogate judges, justices of the peace or whoever. It isn't the place that's important it's that civil marriage is the state's responsibility since the state creates the standards and forms and records the marriages that have been solemnized.

    It's interesting to me, particularly regarding Sally Kern's bill mandating that marriage licenses be issued only by a member of the clergy, that there is obvious discrimination at work not only against gay people but against even smaller religious denominations. I believe for example that the Quakers do not have any clergy as such. Therefore they would be unable to issue marriage licenses and Quakers would thus be unable to enter into marriages other than common-law ones. So without even having to delve into the issue of anti-LGBT discrimination there'd be a manifest issue of violation of the Establishment Clause.

  • 23. FredDorner  |  January 28, 2015 at 9:28 pm

    And it's an obvious violation of the Lemon Test since it entangles a state function with religion.

    It's like having clergy and only clergy issuing driver's licenses.

  • 24. VIRick  |  January 28, 2015 at 10:38 pm

    "…. Sally Kern's bill mandating that marriage licenses be issued only by a member of the clergy …."

    Indeed, the Quakers can and will overturn such a mandate in a heartbeat (if it were ever to become law) as an infringement of THEIR religious liberty.

  • 25. RnL2008  |  January 28, 2015 at 10:59 pm

    Yep, one CAN'T tell a religious organization how to handle their Church Doctrine!!

    By the way Sally Kern and Roy Moore both belong together in the same waste bin……both are poor excuses for being human!!!

  • 26. VIRick  |  January 27, 2015 at 6:15 pm

    Here's a time-line on the Nebraska case:

    The case was first filed on 17 November 2014. As luck would have it, the draw selected Judge Joseph Bataillon to hear the case, the same judge who has already struck down Nebraska's ban in 2005 in "Citizens for Equal Protection v. Bruning."

    Almost immediately thereafter, on 2 December 2014, the plaintiffs' attorneys filed a sweeping motion seeking a preliminary injunction from the District Court to block the further enforcement of Nebraska's constitutional ban on in-state same-sex marriage performance, as well as to force the state to henceforth recognize legally-performed out-of-state marriages between same-sex couples, pending final resolution of the case, on the grounds that the plaintiffs are very likely to prevail, and harm is being perpetrated upon them with each additional day of delay.

    As per docket entry of 12 December 2014, the hearing on the above matter was scheduled to be heard on 29 January 2015.

    Subsequent to the US Supreme Court granting certiorari to the four cases from the 6th Circuit on 16 January 2015, the state requested that the proceedings in the challenge to its marriage ban be placed on hold, pending the outcome of Supreme Court review of the issue in these four cases.The state's requested motion needed to be disposed of first. Hence, the hearing on the preliminary injuction had to be temporarily cancelled.

    Today, 27 January 2015, the state's motion to place the case on hold was denied. The hearing on the preliminary injunction was then immediately re-scheduled for 19 February 2015.

    Expect Judge Bataillon to rule from the bench, striking down the Nebraska ban, on 19 February 2015. No stay. Just as DrBri suggested.

  • 27. DrBriCA  |  January 27, 2015 at 8:56 pm

    Fingers crossed! And thanks for the reference. 🙂

  • 28. LK2013  |  January 28, 2015 at 8:36 am

    That would be lovely!

  • 29. guitaristbl  |  January 27, 2015 at 6:18 pm

    Very good news ! We are getting a ruling in Nebraska even if the 8th issues a stay (which it will probably if the judge does not issue it himself when he rules). I just wish the hearing was re scheduled a bit earlier but it's good to keep the momentum going..!
    Essentially only Georgia and North Dakota won't have a case out of district court when SCOTUS rules.
    And if as others said above the 5th also rules in favour of ME, we are going with some very good signs to the April hearing..!

  • 30. VIRick  |  January 27, 2015 at 7:34 pm

    Why does "North Dakota and the 6th Circuit" sound like an EoT rock group??

  • 31. Randolph_Finder  |  January 30, 2015 at 10:37 am

    The *COLDEST* rock group in creation…

  • 32. Mike_Baltimore  |  January 27, 2015 at 6:39 pm

    Off topic:

    According to reports <a href="http://(,” target=”_blank”>(, Washington Post, New York Post‎, Yahoo News, New York Times, etc.), NY Assembly Speaker Sheldon Silver will resign his position by Monday. "We'll have a vacancy on Monday." (Majority Leader Joseph Morelle)

    Does anyone care to speculate if/how this will affect politics in New York, and if the NY Senate and/or other state agency (New York Court of Appeals [the state's highest court], for example) might/will be affected?

  • 33. Zack12  |  January 28, 2015 at 9:15 am

    This is going to effect politics in NY big time.
    While it won't have as much of an impact on the Court of Appeals (which is down two judges right now), it will impact just about everything else.
    No legislation in NY got passed without Silver's blessing first so it will affect the Senate in that some legislation that made it there before might not now and vice versa.
    He was an ally but at the end of the day, he was also horribly corrupt and his arrest is something that was long overdue.

  • 34. Mike_Baltimore  |  January 28, 2015 at 10:05 am

    Thanks Zack.

    In other words, all the reports I've seen say there will be several affects (some immediate, some later), but the full extent will not fully be known until some (unknown) time in the future.

    Most of the reports I've seen, though, have not given a hint of how Silver's resignation affects the GLBT community. You've given us some insight into that.

  • 35. Zack12  |  January 28, 2015 at 1:14 pm

    As it stands, with the Republicans now controlling the Senate, any LGBT legislation that will help us is likely DOA.
    I will say this though, our New York Court of Appeals will be a lot better for us now that two of the bigots who ruled against us every chance they got are off the bench.

  • 36. Jaesun100  |  January 27, 2015 at 6:40 pm

    When I question how the Supreme Court might rule , I think about the 50(plus) wins …..I can't see the SC telling that many judges they got it wrong….. #stay confident .

  • 37. DrBriCA  |  January 27, 2015 at 8:59 pm

    I also can't see them putting so many marriages since the Oct 6 cert denials and various stay denials back into question. They knew what they were doing in October, and they know what they have to finish in June now that Sutton and Cook forced their hand.

  • 38. scream4ever  |  January 27, 2015 at 6:45 pm

    We'll also probably get a positive ruling from the 11th Circuit, although likely not in time for the oral arguments at the end of April. Regardless it'll bring Georgia over to our side.

  • 39. Decided_Voter  |  January 27, 2015 at 7:57 pm

    Anyone know when briefing on the Florida case will be done with the 11th circuit?

  • 40. scream4ever  |  January 27, 2015 at 8:20 pm

    I believe it's already done since Bondi waved the reply briefs for Florida. They likely will wait until the Alabama cases are fully briefed before scheduling oral arguments though.

  • 41. DrBriCA  |  January 27, 2015 at 9:01 pm

    Yeah. It's frustrating when they hold off on proceeding with a fully-briefed case so that a new case can be added on, but at least it worked for Nevada & Idaho!

  • 42. RobW303  |  January 28, 2015 at 8:56 am

    It nearly backfired with Nevada & Idaho being combined, since if the 9th had issued ruled and issued a mandate on Nevada first, Idaho wouldn't have been able to hold things up in both cases, and there would have been a clear circuit precedent for the Idaho ruling, rather than Idaho setting the precedent.

  • 43. Raga  |  January 27, 2015 at 9:12 pm

    Yes, if the Plaintiffs request them to, I expect that they would expedite the Alabama appeal and consolidate the two for oral argument, perhaps in March/April. Unless they decide to stay proceedings pending the outcome in Obergefell.

  • 44. scream4ever  |  January 27, 2015 at 9:42 pm

    ^^^The Ohio case? You mean the Georgia one right? It seems the judge will likely put it on hold, which is good considering he's poised to rule against us.

  • 45. DrBriCA  |  January 27, 2015 at 9:44 pm

    Georgia is already on hold. I believe Raga was implying that the 11th would add both Alabama appeals to the Florida appeal and then rule on both, unless the 11th instead decides to halt all appeals until SCOTUS rules on the 6th circuit decisions this summer.

  • 46. Zack12  |  January 27, 2015 at 9:52 pm

    It will be intresting to see what the 11th does.

  • 47. scream4ever  |  January 28, 2015 at 12:04 am

    If the 8th isn't staying proceedings, the 11th certainly won't IMO.

  • 48. guitaristbl  |  January 28, 2015 at 12:43 pm

    Although for different reasons..One to add something more to the anti equality side and the other to add to the momentum.

  • 49. VIRick  |  January 28, 2015 at 6:40 pm

    "Georgia is already on hold."

    DrBri, not quite, but it will be rather soon. Here's the latest on Georgia:

    "The LGBT group Lambda Legal filed a brief on Tuesday (27 January 2015) before the federal court considering a case seeking marriage equality that acquiesces to the state’s request for a hold on litigation until the Supreme Court decides the issue. The brief cites plans from state defendants to seek at least four months of discovery before proceeding with the case. 'Since Obergefell will likely significantly reshape the issues for discovery, and may decide this case, and given the discovery that Defendants believe is necessary, Plaintiffs believe that proceeding with the case before Obergefell is decided would not serve the interests of efficiency or judicial economy,' the brief says."

  • 50. DrBriCA  |  January 28, 2015 at 7:27 pm

    If the 11th Circuit were to issue a ruling between now and July, would the plaintiffs be able to ask the judge to unfreeze proceeds (after he stays them soon)? Would they ask the Circuit court to take the case off ice if he himself declines to?

    It'd be amusing if the 11th decided to rule on Florida without oral argument (unlikely, I know, but just going for fun hypotheticals) after Bondi waived her reply in the Brenner appeal a month ago with a statement that was basically "I've got nothing more to say."

  • 51. VIRick  |  January 28, 2015 at 10:02 pm

    Dr Bri, whenever the 11th Circuit Court rules on the Florida and Alabama appeals (and assuming such ruling occurs prior to the Supreme Court's decision on 30 June), their ruling will apply equally to all 3 states within that circuit. It's not necessary for them to have an actual case before them from Georgia. Later, the judge in Georgia will eventually have to rule in accordance with 11th Circuit precedent and dispense with all this "discovery" nonsense that the state (and seemingly the judge, as well) insists upon. By that point, there won't be anything left to "discover."

    Marriage equality can and will come to Georgia once the 11th Circuit Court rules in our favor.

    Thus, for now, it makes better sense to place a hold on the pending case in Georgia, rather than having to deal with another last-minute, out-of-step decision from a Deep South, anti-gay judge. Remember, Tara Borelli is now working as an attorney for the Georgia plaintiffs, following her win in the Nevada case before the 9th Circuit Court. She knows what she's doing.

    When planning a winning strategy, it's always wisest to take the more likely route by following the path of least resistance. Under the present circumstances, we're far more likely to obtain a positive ruling from the 11th Circuit Court than we are from the District Court judge in Georgia.

  • 52. DrBriCA  |  January 28, 2015 at 11:21 pm

    An actual case may not be necessary, but as Kansas has shown (and Florida & Alabama to a different extent), some of these states will need it written out on paper from a judge and repeated to them multiple times so that they know "you've been told." I doubt Georgia will fold as easily as WV did once the 4th circuit ruling was finalized.

  • 53. VIRick  |  January 28, 2015 at 11:42 pm

    Now you're blatantly teasing me with my own words! So, obviously, there's no way I could possibly disagree with you, or I'd end up disagreeing with myself.

    Now, if I could only think of a clever way to tease you back ……

    Oh wait! Perhaps I've already coyly teased you in a fun way, haven't I?

  • 54. Raga  |  January 27, 2015 at 10:06 pm

    No, I meant the consolidated SCOTUS cases, which will probably go down in history by the name of the lead case, Obergefell. I am not aware that either Florida or Alabama has filed a motion with the Eleventh asking them to stay proceedings in their appeals until SCOTUS decides. If they do, I second Zack – it'll be interesting to see what they do.

  • 55. davepCA  |  January 27, 2015 at 10:54 pm

    Do you guys remember when it was easy to keep track of this stuff? I am repeatedly amazed and humbled by the abilities of some participants here to continue to do so, as seen in this thread.

  • 56. Decided_Voter  |  January 28, 2015 at 12:15 am

    That's why I ask the questions here. There are smart people here willing to (or at least try to) answer them the best they can. And I appreciate it.

  • 57. josejoram  |  January 28, 2015 at 6:12 am

    Yes! Wonderful bunch of people.

  • 58. sfbob  |  January 28, 2015 at 7:01 am

    I think you meant "docketing fee.' Docking fees are for boats or…maybe something else. 🙂

    (Sorry, couldn't resist.)

  • 59. ebohlman  |  January 28, 2015 at 10:36 am

    I see you've refrained from offering the uncut explanation.

  • 60. sfbob  |  January 28, 2015 at 2:04 pm

    Indeed, restraint can be a good thing. I hope DACiowan wasn't offended by my attempt at levity.

  • 61. VIRick  |  January 28, 2015 at 2:42 pm

    Bob, you mean there's actually an uncut explanation for why someone might be offering a docking fee? Personally, though, I can't help in that department, as things here are quite tight.

  • 62. Dr. Z  |  January 28, 2015 at 8:28 am

    Nice analysis demolishing the Alabama Probate Judge Association's position from last weekend not to issue marriage licenses.

  • 63. jdw_karasu  |  January 28, 2015 at 12:35 pm

    Bataillon getting this is a hoot. The Other Side must have wet the bed when they saw his name come up out of the draw.

    We've also already seen how judges in the 8th Circuit have danced around Bruning as being controlling anymore. Bataillon will probably be happy to do that dance as well, while also taking some subtle (and perhaps not-so-subtle) shots at Loken, Bowman & Smith for their Bruning ruling. This should be a lot of fun.

  • 64. guitaristbl  |  January 28, 2015 at 12:45 pm

    Bataillon has every right to dance around Bruning and criticize it finally at the same time. I expect a passionate opinion. This man must feel that justice is finally coming for his judicial point of view on the issue, after years of him being the only judge who dared to strike down an amendment.

  • 65. VIRick  |  January 28, 2015 at 1:53 pm

    It's karma at work. What goes around, comes round. Judge Bataillon won't have any difficulty dancing around the 8th Circuit Court's ruling in "Bruning." Neither Judge Baker in the federal case in Arkansas, nor Judge Schreier in the South Dakota case found the dancing to be difficult . Both laid in on the line, and then dismissed "Bruning" as non-binding on the present issue at hand. Besides, the original plaintiffs in the "Bruning" case presented a slightly different argument on slightly different grounds than that taken by the present plaintiffs in "Waters v. Heineman," as was the situation with the current plaintiffs in both the Arkansas and South Dakota cases.

    I'm hoping Judge Bataillon will issue something passionately strong along the lines of "I told you so. I got it right the first time around, 10 years ago."

  • 66. RobW303  |  January 28, 2015 at 11:26 pm

    (deleted by user)

  • 67. Zack12  |  January 28, 2015 at 1:16 pm

    Indeed, those bigots need a well deserved smackdown.

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