Judge Joseph Bataillon, a Clinton appointee to the U.S. District Court for the District of Nebraska, today issued a 43-page opinion in Citizens for Equal Protection v. Bruning striking down a 2000 amendment to the Nebraska Constitution limiting marriage under Nebraska state law to opposite sex relationships. As far as I know, this is the first judicial opinion holding that a state ban on same-sex marriage violates the federal constitution. Prior opinions have focused on whether state statutes violated state constitutions.
As best I can tell from a very quick scan of the opinion, Judge Bataillon’s opinion holds that the Nebraska ban on same-sex marriage violated a slew of constitutional doctrines. Those doctrines include: 1) “the right to associational freedom protected by the First Amendment and the Due Process Clause of the Fourteenth Amendment to the Constitution, 2)”the right to petition the government for redress of grievances, which encompasses the right to participate in the political process,” 3) equal protection the laws pursuant to Romer v. Evans, and 4) the prohibition against Bills of Attainder under Article I, Section 9. Notably, there is hardly any mention in the opinion of Lawrence v. Texas.
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