NE ACLU files another brief in response to AG Don Peterson's attempt to stall gay marriage cases

Free-spending ultra right-wing Nebraska Attorney General Don Peterson first tried to stay proceedings in Nebraska's gay marriage suit until June, when the the U.S. Supreme Court is expected to rule on marriage equality in four cases outside Nebraska's Eighth U.S. Court of Appeals District.
     Judge Joseph F. Bataillon denied the Nebraska Attorney General's office stalling tactic, ruling that AG Peterson and his staff have "not made a sufficient showing that a delay in the outcome is necessary" and, therefore, said delay is "not warranted."
     Below, the ACLU refutes arguments advanced by AG Doug Peterson's office against its motion for a preliminary injunction while the case proceeds.
     AKSARBENT recommends that if you're reading this, you tweet @GovRicketts to find out how much the state is spending to delay gay marriage in Nebraska, which is now surrounded by gay marriage states.

   8:14-cv-00356 #49 by Equality Case Files

Your taxes at work: while plaintiff dies of stage IV cancer, new NE AG uses discredited Regnerus study as 'evidence' to stall gay marriage suit; auditor of journal that published study called it 'bullshit'

Kansas Secretary of State Kris Kobach shows up in Lincoln, Nebraska to pimp GOP Voter Supression bill 
Three bills addressing anti-LGBT bias introduced in Nebraska Unicameral

The office of Nebraska Attorney General Doug Peterson Office has filed a motion to put a federal lawsuit challenging Nebraska's gay marriage ban on hold pending a decision by the U.S. Supreme Court, which the ACLU has answered.
     In the mean time, as Equality Case files reports, Senior Judge Joseph F. Bataillon has cancelled, pending further order of the court, next week's hearing on the ACLU motion for a preliminary injunction that would require the state to recognize same-sex marriages while the lawsuit proceeds.
     Nebraska's 45-page attempt to stall the ACLU's preliminary injunction contains such gems of compelling persuasion as its insistence that the state does not discriminate in marriage due to sexual orientation because it does not ask men restricted to marrying women what their sexual orientation is or women restricted to marring men what their sexual orientation is. All done!
     Well, not quite — we forgot the first exhibit's affidavit — evidence supporting the Nebraska Attorney General's office brief from Catherine Pakaluk an assistant professor of economics at Ave Maria University (seriously) in Naples, FL. She also describes herself as a Senior Fellow (in Economics) at the Austin Institute for the Study of Family and Culture in Austin Texas.
     That would be Mark Regnerus' outfit.
     Pakaluk's affidavit, submitted by the Nebraska Attorney General's office, contains dozens and dozens of pages of the so-called Regnerus Study.
     Here's what federal judge Bernard Freidman scathingly wrote about the Regnerus study in his decision overturning Michigan's ban on same sex marriage:

 ...The Court finds Regnerus’s testimony entirely unbelievable and not worthy of serious consideration. The evidence adduced at trial demonstrated that his 2012 “study” was hastily concocted at the behest of a third-party funder, which found it “essential that the necessary data be gathered to settle the question in the forum of public debate about what kinds of family arrangement are best for society” and which “was confident that the traditional understanding of marriage will be vindicated by this study.” ...In the funder’s view, “the future of the institution of marriage at this moment is very uncertain” and “proper research” was needed to counter the many studies showing no differences in child outcomes. Id. The funder also stated that “this is a project where time is of the essence.” Id. Time was of the essence at the time of the funder’s comments in April 2011, and when Dr. Regnerus published the NFSS in 2012, because decisions such as Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010), and Windsor v. United States,-13-833 F. Supp. 2d 394 (S.D.N.Y. 2012), were threatening the funder’s concept of “the institution of marriage.” While Regnerus maintained that the funding source did not affect his impartiality as a researcher, the Court finds this testimony unbelievable. The funder clearly wanted a certain result, and Regnerus obliged. Additionally, the NFSS is flawed on its face, as it purported to study “a large, random sample of American young adults (ages 18-39) who were raised indifferent types of family arrangements” (emphasis added), but in fact it did not study this at all,as Regnerus equated being raised by a same-sex couple with having ever lived with a parent who had a “romantic relationship with someone of the same sex” for any length of time. Whatever Regnerus may have found in this “study,” he certainly cannot purport to have undertaken a scholarly research effort to compare the outcomes of children raised by same-sex couples with those of children raised by heterosexual couples. It is no wonder that the NFSS has been widely and severely criticized by other scholars, and that Regnerus’s own sociology department at the University of Texas has distanced itself from the NFSS in particular and Dr. Regnerus’s views in general and reaffirmed the aforementioned APA position statement. 

Below: Newly appointed Nebraska Chief Deputy Attorney General Dave Bydalek touting the discredited Regnerus Study in 2014 as evidence to defeat LB380's adoption reforms when he worked for the Nebraska Family Alliance. If Bydalek didn't know the study was bogus then, he surely knows it now, as the study:

• was shown to be engineered and funded by right-wing groups to influence SCOTUS gay marriage deliberations
• was discredited by 200 PhDs and MDs in a U.S. Supreme Court brief in support of the reversal of California's Proposition 8
• was excoriated by the prestigious American Sociological Association
• was called "bullshit" by Darren E. Sherkat, an editor of the very journal that published it, after he was assigned to audit the study following the uproar it caused

How much of your taxes will NE GOP officials squander to fight gay marriage, already legal in 4 border states?

GOP House Majority Leader John Boehner hired expensive private attorneys to fight the federal Defense of Marriage Act, later largely gutted in the Supreme Court's 2013 Windsor decision. That cost you $2,300,000.
     The Obama administration, which (unlike right-wing ideologues) saw the writing on the wall and in previous decisions on DOMA in lower courts, wisely didn't bother to defend DOMA, although it did enforce it (contrary to what you may have heard on Fox News.)
     Various state attorney generals are now replicating Boehner's Vietnam strategy, even though U.S. Circuit Courts of Appeals have been striking down state gay marriage bans such as Nebraska's, like bowling pins. From Matt Baume:

     Marriage is here to stay in South Carolina, but Attorney General Alan Wilson seems to be having a hard time accepting it. Even though South Carolina couples have been getting married since last month, Wilson has continued his losing battle to stop the weddings. But the longer he drags out his appeal, the more money he may wind up having to give to a coalition of gay rights groups.
     That's because the coalition has filed a petition seeking to recoup the money that they've had to spend to keep marriage legal. If the court grants their request, Wilson will have to give over $150,000 to organizations fighting for equality. Wilson really has no chance of stopping marriage at this point. He's appealing to the Fourth Circuit, which has repeatedly allowed marriages to go forward. So all he's doing now is running up a huge tab.
     And the same thing's happening in Arkansas...

Nebraska AG Jon Bruning pictured
with Eames and Barcelona chairs

Last February, Nebraska Attorney General Jon Bruning spent an undetermined amount of Nebraska public funds filing an amicus brief in support of Utah's efforts to keep gay couples strangers to the law. Leaving aside the fact that Utah is in the 10th U.S. District Court of Appeals and Nebraska is in the 8th, the preparation and filing was a complete waste of Nebraska taxpayers' money by Bruning because (via WikiPedia):

     The U.S. District Court for the District of Utah found the state's ban on same-sex marriage unconstitutional in December 2013. Its order that the state cease enforcing its ban took effect immediately. In January 2014, after stays had been denied by the District Court and the Tenth Circuit, the U.S. Supreme Court granted a stay of the District Court's order pending consideration of the appeal by the Tenth Circuit Court of Appeals.
     In June 2014, the Tenth Circuit affirmed the decision of the district court, finding that Utah's ban on same-sex marriage was unconstitutional, but stayed their mandate pending petition to the Supreme Court.

     Last month, ACLU Nebraska sued the state over its ban on gay marriage (and civil unions AND domestic partnerships!), joining similar challenges in every other state in the 8th U.S. District Court of Appeals.
     Incoming GOP Governor-elect Pete Ricketts has already vowed to fight challenges to the state's ban, as has the state's current GOP governor, Dave Heineman, who, in respect of his unrelenting hostility to LGBTs, is quite a piece of work.
     What we'd like to know is how recklessly GOP officials in Nebraska plan to pander to homophobes or indulge their own bias.
     Will they take things so far that they too will be sued for reimbursement when marriage equality advocates likely win in the 8th Circuit but face dragged-out hopeless appeals by the Ricketts administration and/or new GOP Attorney General Doug Peterson?

---

     UPDATE: In addition to the examples cited above, you can add Minnesota Wisconsin to the roster of states in which officials who stubbornly delayed the inevitable may have to pay for their efforts to stall the civil rights of gay couples — leaving Gopher Badger State taxpayers on the hook for as much as $1.25 million because, according to a new ACLU suit, state officials decided to:

"file multiple motions, conduct discovery, assert novel arguments, and frantically try to stop marriages from occurring increased the substantive and procedural complexity of plaintiffs’ counsels’ work in the trial court and the Court of Appeals, and thus the time required to competently prosecute the action."

Will this now happen in Nebraska during a Ricketts administration?

New legal filings by NE ACLU in support of marriage equality

From wire services:

The American Civil Liberties Union of Nebraska filed a December 2nd for a preliminary injunction requiring the state to recognize the marriages of same-sex couples and allow same-sex couples to marry while the lawsuits proceeds. The motion cites the ACLU's likelihood of prevailing in the case. Same-sex couples can marry in at least 32 other states.

Here's the brief in support of the preliminary injunction and here's the motion and here's the amended complaint.

Matt Baume's Marriage News Watch weekly wrap-up

Baume doesn't mention last week's Nebraska ACLU news conference announcing the filing of its federal suit against Nebraska's ban on gay marriage (...and civil unions ...and domestic partnerships, which named Jon Bruning, Dave Heineman and ), but he did mention the impending suit last week, and even retweeted AKSARBENT's photo and link to our post about ACLU Nebraska's efforts on behalf of the state's LGBTs.

NU student newspaper, in gay marriage editorial, likens Gov.-elect Pete Ricketts, Gov. Heineman and AG Jon Bruning to George Wallace, Joseph McCarthy, David Duke and Roger Taney

Commenting on last week's ACLU suit to overturn Nebraska's constitutional ban on gay marriage the student newspaper, distributed to about 25,000 people on the Lincoln Campus, had this to say in an op/ed about Bruning, Heineman and cagey incoming governor Pete Ricketts, who said little about LGBT rights during his campaign, included nothing about them on his web site, and even placed Internet ads next to gay content: — until he was elected, at which point he loudly proclaimed that he would "defend" the state against the ACLU's marriage lawsuit.

     Governor-elect Pete Ricketts stated, “Our citizens here in the state voted overwhelmingly that marriage is between a man and a woman,” and vowed to defend the constitutional ban. While Ricketts is correct that our electorate voted to ban same-sex marriages, it’s indubitably unconstitutional and an example of the tyranny of the majority. In a constitutional democracy, Ricketts’ argument is fallacious. What if we voted overwhelmingly to allow slavery? Or only allow rich, white men run for political office? Or appoint the badger as the official Nebraska State mammal? Some things are simply inalienably wrong or violate the Constitution. 
     ...Governor-elect Ricketts, Governor Heineman, Attorney General Bruning and the rest of the defendants in Waters v. Heineman, your names will be included on a list littered with the likes of George Wallace, Joseph McCarthy, David Duke and Roger Taney. The oath of office requires you to support the Constitution, not betray it. Blame your generation, religious beliefs or support for states’ rights all you want. In the end, history will not reflect kindly on you.

ACLU Nebraska files federal lawsuit challenging state's gay marriage ban

Last week, the Omaha World-Herald, then the Lincoln Journal-Star published leaked accounts of a forwarded email disclosing that the ACLU would file a lawsuit challenging the state's constitutional ban on gay marriage (Initiative 416), one of the strictest in the nation, passed in 2000.
     This morning, in a conference room opposite the snowy courtyard of the Magnolia Hotel in downtown Omaha, the Nebraska ACLU announced that it, the American Civil Liberties Union and the law firm of Koenig | Dunne have sued Gov. Heineman over the state ban.
     Nebraska had been the only state within the 8th U.S. Circuit Court of Appeals district without a federal challenge to a law banning same sex marriage.
     Nebraska's GOP Governor-elect, TD Ameritrade scion Pete Ricketts, has already vowed to fight challenges to the state's ban. So has the state's current GOP governor, Dave Heineman, who, in respect of his unrelenting hostility to LGBTs, is quite a piece of work.
    

For a copy of the lawsuit: http://www.aclunebraska.org/images/attachments/215_Waters_v_Heineman.pdf

Attachments:

Waters_v_Heineman.pdf

From the press release:

November 17, 2014

OMAHA, Neb. – The American Civil Liberties Union, the ACLU of Nebraska and the law firm of Koenig | Dunne filed a lawsuit in federal court today on behalf of seven couples who seek state recognition of their marriages or who seek the freedom to marry in Nebraska.
     “Today is an exciting day for all Nebraskans because freedom means freedom for everyone. The couples we represent in this historic case are all tax paying citizens who are active in their communities and who are contributing positively to our economy. These families have served our country, are successful in their professions, and are parents raising children. The couples we represent seek nothing more and nothing less than the freedom to marry who they love. Nebraska has waited long enough it is time for the Cornhusker state to extend the freedom to marry to all its citizens,” said ACLU of Nebraska Executive Director Danielle Conrad.

     The plaintiffs include Susan and Sally Waters of Omaha who have been together for seventeen years.
     In January 2013, Sally was diagnosed with breast cancer which has progressed to stage four and is considered terminal.
     “We have said publicly before God, our family and our friends that we love each other and are committed to one another and our children,” said Sally Waters, “At this moment, I want to spend time loving my children and my wife while knowing that should I die, they will be cared for. By not recognizing my family, Nebraska is making a difficult situation much more difficult emotionally and financially.”
     Other plaintiffs include:

• Nick Kramer & Jason Cadek: The couple resides in Omaha with their three year old daughter Alice. They are both employed, own their home, have been in a relationship for ten years and were legally married in 2013.
• Jessica and Kathleen Källström-Schreckengost: The couple resides in Omaha with their infant Sebastin. They are respectively a lawyer and a therapist. The couple has been in a relationship for almost ten years as they began dating in college. They were legally married in 2010.
• Crystal Von Kampen & Carla Morris-Von Kampen: The couple resides in their hometown of Norfolk. Crystal is a disabled Veteran and Carla is an advocate for families that have disabled children. The couple has been together for five years and celebrated the first anniversary of their marriage in November 2014. The couple has three adult children.
• Greg Tubach & Bil Roby: The couple resides in Lincoln and have been together for twenty eight years. Both are employed and they own homes in Nebraska. The couple is not married but seeks the freedom to marry in Nebraska.
• Marj Plumb & Tracy Weitz: The couple resides in Omaha with their two dogs and has been together for over ten years. The couple was legally married in 2008.  Both are successful professionals and came to Nebraska for a job opportunity in 2014.
• Dr. Tom Maddox & Randy Clark: Tom is a native Nebraskan who graduated from the University of Nebraska and the University of Nebraska Medical Center. After graduation he pursed his medical residency in Missouri where he met Randy. Randy is a CPA. They couple has been together for over 30 years and were married in 2008. They currently reside in La Jolla California. They visit family in Nebraska regularly and own commercial property in Nebraska.

"These families simply want the security and recognition that only marriage provides," said Amy Miller, legal director of the ACLU of Nebraska. "It is wrong for the state to treat these loving and committed couples as second-class citizens. When a family has roots in Nebraska or wants to call Nebraska home, they should be able to do so without being treated as legal strangers.”
The lawsuit will be filed in the U.S. District Court. The plaintiffs allege that the state’s constitutional marriage ban unlawfully discriminates against lesbians, gay men, and their children. Due to Sally Waters’ medical condition, the attorneys will be filing a separate motion for emergency relief.
     Polls indicate that a majority of Americans support the freedom to marry for all citizens. Currently 33 jurisdictions in the United States grant or recognize the freedom to marry for same sex couples.
     For bios of the clients: http://www.aclunebraska.org/images/ne_out4freedom_bios.pdf

Lame duck GOP NE Gov., Dave Heineman, vows to fight next week's ACLU suit against state's gay marriage ban

Why is AKSARBENT running a picture of Gov. Dave
Heineman with that of a weasel? Go here.

KETV reports that GOP Gov. Dave Heineman, who has been relentlessly hostile to gay equal rights will "not take a pass" on the lawsuit, which the American Civil Liberties Union of Nebraska plans to file next week.
     News of  the suit was leaked to the Omaha World-Herald yesterday.
     The state's GOP governor-elect, TD Ameritrade scion Pete Ricketts, vowed after his election to fight marriage equality in the Cornhusker state.
     The state's lame duck Attorney General, John Bruning, who became a multi-millionaire while in office is no prize either. But at least he thinks that heteros don't have the right to get divorced either.
     Fun fact: The Nebraska State Capitol, as pictured below in a whacked painting which adorned a P.O. Pears wall in Lincoln for years, is probably the most phallic government building in the world — unless there is another edifice somewhere with a 400-foot shaft with a bulbous tip on top of which a sower depicted flinging his seed in the general direction of 'O' Street.
     Novelist Ernest Hemingway once called the building "the penis of the plains" in a lecture at UNL.
     Film critic Andrew Sarris, also struck by the blatant phallic-ness of the Nebraska's capitol (designed by Bertram Goodhue, who also designed the Cheltenham typface), told a film study class in the 80s, that if Rainer Fassbinder ever came to Lincoln, he would probably photograph the capitol from a circling helicopter.

Leaked: Nebraska ACLU will sue next Monday to overturn state's gay marriage ban

Both the Lincoln Journal-Star and the Omaha World-Herald are reporting today that the Nebraska chapter of the American Civil Liberties Union will file suit Monday to overturn the state's constitutional ban on gay marriage (Initiative 416), one of the strictest in the nation, passed in 2000.
     Nebraska had been the only state within the 8th U.S. Circuit Court of Appeals district without a federal challenge to a law banning same sex marriage.
     Nebraska's GOP Governor-elect, TD Ameritrade scion Pete Ricketts, has already vowed to fight challenges to the state's ban.
     The World-Herald seems to have got the story first; evidently an email sent to same-sex marriage supporters working with the ACLU was forwarded to the paper. That email, written by former State Senator and current ACLU Executive Director Danielle Conrad, said the group

     "plans to request a preliminary injunction against the state because of 'the circumstances of one of the couples involved.'
     ...Conrad said the legal team working on the planned lawsuit in Nebraska includes Leslie Cooper of the national ACLU, Omaha attorneys Susan Koenig and Angela Dunne, and Amy Miller, legal director for ACLU Nebraska."

     The 8th U.S. Circuit court of Appeals covers seven states. Minnesota and Iowa already allow gay marriage and suits challenging bans on marriage equality have been filed in South and North Dakota, Missouri and Arkansas.

A brief overview of legal actions addressing gay marriage in Nebraska since Initiative 416 passed:
     From Wikipedia:

     On May 12, 2005, United States District Judge Joseph F. Bataillon ruled that Initiative Measure 416 violated the Equal Protection Clause of the Fourteenth Amendment and was a bill of attainder in violation of the Contract Clause of Article I. Nebraska Attorney General Jon Bruning appealed the decision to the Eighth Circuit in St. Louis, Missouri.
     In 2006, a federal lawsuit, Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), was filed challenging the federal constitutionality of Nebraska Initiative Measure 416, a 2000 ballot initiative that amended the Nebraska Constitution to prohibit the recognition of same-sex marriages, civil unions, and other same-sex relationships.
     On July 14, 2006, the Eighth Circuit reversed Judge Bataillon's decision. It held that Initiative Measure 416 did not violate the Equal Protection Clause, was not a bill of attainder, and did not violate the First Amendment. The Eighth Circuit held that "laws limiting the state-recognized institution of marriage to heterosexual couples ... do not violate the Constitution of the United States." The plaintiffs did not appeal to the Supreme Court.
      Bruning was the only decision of a U.S. Court of Appeals to rule that a state ban on same-sex marriage comports with the U.S. Constitution until the Sixth Circuit did so on November 6, 2014.

From Freedom to Marry (edited):

     On June 13, 2014, the Nebraska Supreme Court dismissed a petition from two women (Nichols vs. Nichols) for the dissolution of their marriage, saying that it could not address constitutional issues in the case because it did not have jurisdiction to hear the case because Nichols appealed a lower court's denial of the divorce from a conditional order rather than a final judgment. The plaintiff has said that she would continue pushing for the divorce.