Both sides in suit over Nebraska gay marriage ban file more information requested by judge

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OMAHA, Nebraska — Attorneys on both sides of the legal fight over Nebraska's gay marriage ban have submitted their final written arguments on a motion requesting that the ban be immediately lifted.

The American Civil Liberties Union of Nebraska sued the state last year on behalf of several same-sex couples challenging the ban, which was passed with the approval of 70 percent of voters in 2000.

Last week, a federal judge heard arguments on the ACLU's motion for an injunction to block enforcement of the ban while the lawsuit is pending. U.S. District Judge Joseph Bataillon asked for both sides to submit additional information by Monday.

An attorney for the couples provided the court with an affidavit detailing the negative effects of the ban on their health insurance and survivor benefits, including the fear that if one partner were to die, the surviving partner would lose Social Security benefits and face paying an 18 percent inheritance tax that recognized surviving spouses don't have to pay.

The state countered that the attorney's affidavit is inadmissible hearsay, saying that because the attorney's statements in the affidavit would not be admissible if she were testifying at trial, the affidavit should not be admitted as evidence.

Bataillon, who hasn't said when he would rule on the injunction motion, struck down Nebraska's ban in 2005, finding that it violates the constitutional rights of gays and lesbians. An 8th U.S. Circuit Court of Appeals panel reinstated the ban in 2006.

But any rulings in the latest Nebraska challenge 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 the constitutional right to marry everywhere in the U.S. A decision is expected by late June.

Gay marriage is currently allowed in 37 states and the District of Columbia.

Nebraska's constitutional ban defines marriage as the union of one man and one woman. In addition to prohibiting gay marriage, it also forbids civil unions and legalized domestic partnerships.

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