Doug Peterson

Nebraska Attorney General

Ag Peterson Requests Stay Pending Eighth Circuit Appeal

Today, the Federal District Court for the District of Nebraska, in Waters v. Ricketts, heard argument on the plaintiffs’ motion for a preliminary injunction. The plaintiffs are seeking to have the Nebraska constitutional amendment (Article I, Section 29) defining marriage as only between a man and woman be declared unconstitutional.

Judge Bataillon has indicated he will not be making a ruling before next Tuesday. If the Court does grant an injunction, we have requested that Judge Bataillon stay his decision pending the State’s appeal to the Eighth Circuit Court of Appeals. All of the District Courts in the Eighth Circuit that have ruled on this issue have stayed their own orders.

The argument that the State made to the court today is straightforward. Historically, the people have been given the exclusive right to define each state’s own marriage laws.  In 2000, 70% of Nebraska voters voted to enshrine in our constitution an amendment defining marriage to be exclusively between a man and a woman. This definition of marriage has been recognized for thousands of years by numerous societies and numerous religions. Governments define marriage in this way because it is the only relationship that has the ability to produce offspring and to maintain the very existence of that society. Furthermore, the institution of marriage between a man and a woman has historically proven to be the best institution to raise healthy, productive children.  In 2013, US Supreme Court Justice Alito opined in United States v. Windsor:

Every person has a mother and a father.  The state has not only a rational basis but a compelling interest in encouraging arrangements where the children are more likely to be raised by both of those parents.

As Nebraskans, we are capable of deciding sensitive issues such as this with rational debate, respecting differences of opinion. It is respectable public debate that sustains our Republic. The Supreme Court stated just last year in the case of Schuette v. Coalition to Defend Affirmative Action;

The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the nation and its people.

Recently, the Federal Court of Appeals for the Sixth Circuit acknowledged in the DeBoer case that of all the ways to resolve how each state is to define marriage, one option that is not available in our Constitution is to simply leave the question up to a federal judge or panel of federal judges about whether same-sex marriage is a good idea. These are the type of decisions that a Republic must entrust to its people.