Waters v. Ricketts, 48 F. Supp. 3d 1271

Plaintiffs are eight same-sex couples (some married in other states; some seeking to marry in Nebraska) asserting that Neb. Const. art. I, § 29 (Section 29) bars their marriages or recognition and violates the Fourteenth Amendment.
Plaintiffs allege deprivation of the fundamental right to marry and unequal treatment based on sexual orientation and gender, seeking a preliminary injunction against enforcement of Section 29.
The record includes factual demonstrations of concrete harms: loss of spousal benefits (Social Security, survivor benefits, tax treatment), parental status and related medical/parental decision rights, financial harms (taxes, VA loan/tuition loss), and dignitary stigma; one plaintiff (Sally Waters) has terminal cancer, creating urgency.
Nebraska defends Section 29 as a democratically enacted policy to promote opposite-sex procreation and to link children to biological parents; it urges rational-basis review and relies on precedent (Baker, Eighth Circuit Bruning) and social-science affidavits.
The court considered circuit decisions invalidating same-sex marriage bans and recent Supreme Court guidance (Windsor), concluding Baker and Bruning do not bar review and held a preliminary injunction was warranted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Section 29 likely violates the Fourteenth Amendment	Section 29 discriminates on gender/sexual orientation and/or infringes the right to marry; plaintiffs likely to prevail	Section 29 is constitutional, enacted by voters, advances procreation/family stability, and should receive rational-basis review	Plaintiffs likely to succeed; injunction granted
Level of scrutiny applicable	Gender-based classification or stereotype-based discrimination triggers heightened/intermediate scrutiny	No fundamental right to same-sex marriage; classification is not suspect so rational-basis applies	Court applies at least intermediate scrutiny (gender classification) and finds State fails to show an exceedingly persuasive justification
Standing of Baker/Bruning to preclude relief	Baker and Bruning are no longer controlling given doctrinal developments (Lawrence, Windsor, circuit decisions)	Baker and Bruning foreclose the claim	Court finds Baker and Bruning not controlling and declines to treat them as bars
Irreparable harm and balance of equities for preliminary injunction	Plaintiffs suffer irreparable dignitary, parental, medical, and financial harms (some immediate) with inadequate legal remedies	State harmed by inability to enforce enacted law and administrative disruption	Plaintiffs demonstrated irreparable harm; state harm minimal; public interest favors protecting constitutional rights; injunction issued (effective March 9, 2015)

United States v. Windsor, 133 S. Ct. 2675 (2013) (federal DOMA invalidated; state marriage regulation subject to constitutional limits)
Baker v. Nelson, 409 U.S. 810 (1972) (summary dismissal; court held it is not now controlling on same-sex marriage questions)
Citizens for Equal Prot. v. Bruning, 455 F.3d 859 (8th Cir. 2006) (Eighth Circuit upheld Nebraska amendment on political-process/access theory; not dispositive here)
Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109 (8th Cir. 1981) (preliminary injunction standards)
Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014) (invalidating same-sex marriage bans; analysis of harms to children and minorities)
Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014) (invalidating Virginia same-sex marriage ban)
Latta v. Otter, 771 F.3d 456 (9th Cir. 2014) (invalidating Idaho and Nevada bans; gender-classification analysis)
Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (invalidating Utah ban)
Loving v. Virginia, 388 U.S. 1 (1967) (right to marry is fundamental; race-based marriage bans unconstitutional)
Griswold v. Connecticut, 381 U.S. 479 (1965) (substantive due process liberty protections including marriage)