Nebraska Same Sex Divorce Case Re-ignites Challenge to Constitutional Ban

Two same-sex divorce cases working their way through Nebraska courts have provoked the first major challenge to the state’s ban on gay marriage since 2006. NET News broke the story this morning. (Read about it here).

It is surprising a big-deal case involving same-sex divorce had not surfaced in Nebraska years ago. Voters defined marriage as exclusively the right of a man and a woman fourteen years ago. The amended Constitution won the approval of the United States Court of Appeals of the Eighth Circuit in 2006. The three-judge panel ruled Nebraska had a right to decide who could legally marry.

                                                                    Photo: Getty Images

The new and unexpected challenge comes with the filing of Nichols v. Nichols. The case moved through Lancaster District Court and into the state’s appellate system completely off of media and legal radar. 

Stealth was fine with the couple involved.  They only seek a divorce decree not a place in history, according to their attorney Megan Mikolajczyk. It just so happened their case veered into “uncharted" waters according to the lower court judge unable to legally end their marriage.

It’s likely the case will bypass the Court of Appeals. It appears to be “a case of first impression” involving Constitutional questions, which often remains the domain of the state’s Supreme Court. A ruling could either change or a reinforce Nebraska’s gay marriage ban at a time when federal judge’s have rejected similar laws around the country left and right.

One other same-sex divorce case in the state made the news before the NET News story. In 2011 two Nebraska women, hitched in Vermont, sought dissolution of their marriage in Otoe County. District Judge Randall Rehmeier ruled he couldn’t do it, yet he approved the couple’s custody agreement for their daughter. They did not appeal so the ban was not challenged.

Divorcing gay couples may be routine in states where it’s legal (did you hear about Olympic ice-skater Johnny Weir?!) but few cases make the news in states where same-sex marriage remains legally taboo. 

It’s been written that getting a same sex-divorce is more complicated than a same-sex marriage. Rebecca Yorkston agrees.  She told me “it is an irony that a divorce is likely to play a part in marriage equality.”

Hers is one of two active divorce cases in Nebraska making a direct assault on the constitutional ban. The case is in the hands of the Lancaster County District Court. The couple listed Nebraska Attorney General Jon Bruning as a party in the their divorce. This allowed them to ask the court whether the ban infringes on their Constitutional rights. (The Attorney General had the option to file a response explaining why maintaining the ban was in the state’s interest. The deadline passed and nothing has yet been filed with the court. We asked his office why but got not response.)

Yorkston’s marriage started out exhilarating. Across the Missouri River in Iowa, same-sex couples lined up at county courthouses to take advantage of the historic nuptial law. Yorkston and her partner wanted to be part of it. Of course, when everything is great, couples never consider other options if they need to extract themselves from a marriage gone bad. “It never occurred to me,” Yorkston said.  “In part it never occurred to me because I never thought I was going to get divorce.  But it didn’t occur to me either that once I went to dissolve the relationship that it was not a possibility; that I could not end the relationship.”

And Nebraska says she can’t. The only other option would be getting it done in Iowa, but she or her wife would be required to establish residency in Iowa for at least a year. Quitting jobs and moving was hardly a desirable option. “They will marry you but they won’t divorce you,” she said when we talked on the phone. “That was quite a shock.” Her attorney and the ACLU of Nebraska intend to file briefs in support of the Nichols divorce.

Residents of some other states do give same-sex couples an escape route. Wyoming and Arizona are the only two that do not allow gay marriage but have law accommodating gay divorce. The state Supreme Court in Texas heard a same-sex divorce case similar what’s on deck in Nebraska.  No ruling has been issued, but as the justices there worked through the issue a Federal District Court judge declared the state’s law banning same-sex marriage was unconstitutional.

Strong advocates in support of traditional heterosexual weddings.  Attorney General Bruning (now a candidate for governor) recently re-affirmed his support for heterosexual marriage.  In January he joined other State Attorneys General in a federal court brief arguing in favor of a similar ban in Nevada.  Bruning and ten others wrote that “no fundamental right to same-sex marriage exists. The theory of traditional civil marriage, that is, turns on the unique qualities of the male-female couple for procreating and rearing children under optimal circumstances. As such, it not only reflects and maintains deep-rooted traditions of our Nation, but also furthers the public policy of encouraging biological parents to stay together for the sake of the children produced by their sexual union.” Nevada's governor and attorney general have since abandoned the case.

All indications are public opinion has changed dramatically since the state voted to add Amendment 29 to the state’s Constitution. In the year 2000 seven out of ten Nebraska voters agreed limiting marriage to one man and one woman was the right thing to do. In 2012 a poll taken by the Omaha World-Herald revealed 54 percent of the people asked approved of either same-sex marriage or civil unions.