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Federal appeals court affirms judge's striking down of Nebraska ban on gay marriages, unions

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OMAHA, Nebraska — A federal appeals court on Tuesday affirmed a lower judge's ruling striking down Nebraska's now-negated ban on gay marriage and civil unions as unconstitutional.

The decision by the 8th U.S. Circuit Court of Appeals was largely a formality, as a Supreme Court ruling in late June legalized gay marriage across the county.

The formality was necessary, the appeals court said, because while the Supreme Court's ruling grants gay couples the right to marry nationwide, the ruling came on appeals that challenged same-sex marriage bans in Michigan, Kentucky, Ohio and Tennessee — not Nebraska.

Tuesday's ruling came in the case of seven same-sex couples who sued last year for the right to marry in Nebraska or to have their marriages in other states recognized by Nebraska. The couples also sought state benefits afforded to other married couples.

Attorneys for Nebraska had argued that an 8th Circuit decision on U.S. District Judge Joseph Bataillon's ruling in March striking down Nebraska's ban was moot in light of the Supreme Court decision.

The three-judge appeals panel disagreed, noting that the Supreme Court ruling not only didn't specifically address Nebraska's ban, but "did not consider state benefits incident to marriage, which were addressed by plaintiffs and the district court here.

"Nebraska has not repealed or amended the challenged constitutional provision," the appeals panel said.

The 8th Circuit's decision came after it had allowed Nebraska's ban to stay in place for months while it considered the state's appeal of Bataillon's order. The appeals court ultimately determined it would wait for the Supreme Court to decide the issue of gay marriage nationwide before ruling on Nebraska's ban.

Nebraska's ban was approved overwhelmingly by voters in 2000. In addition to prohibiting gay marriage, it also outlawed civil unions and domestic partnerships, making it one of the most restrictive same-sex union bans in the country.

An attorney for the same-sex couples who sued said Tuesday that while the 8th Circuit ruling is technical, it's also meaningful.

"It's important as our state continues to have a conversation about marriage equality and ... the important work that was done in Nebraska to that end," attorney Susan Ann Koenig said.

The Nebraska Attorney General's Office did not immediately return a message Tuesday seeking comment.

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