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. 

Secretly record your spouse? More common in divorce cases and legal in Nebraska.

With all the hand-wringing, finger-wagging, document-leaking and late-night-comedian-joke-telling about the NSA and U.S. government collecting data on everyone’s phone calls and emails, one Nebraska family law attorney brought up a really good old-school question: is it okay to record your own phone calls when the other person doesn’t know it? Is that illegal spying too?

Angela Y. Madathil, a Nebraska divorce lawyer wrote in her blog “I have had several clients ask me if they can record telephone calls with their ex-husband or ex-wife.” My first reaction: the statement said a lot about the nasty nature of divorce these days.  Ms. Madathil doesn’t make any moral judgment of her clients or their estranged spouses armed with digital recorders. The clients ask, she explained, hoping to make use of the recording at just the right time in court. Apparently all’s fair in what-used-to-be love and war.

The legality, the ethics, and the advisability of making a secret recording are great questions. Reporters and lots of other professions wrestle with the same decisions. 

What’s are the rules in Nebraska?

First, to make it perfectly clear, the question here is whether a call can be recorded when one person is aware the call is being recorded and the other person is left in the dark. (Here's Nebraska's law.) If neither person knows the conversation is being preserved that is most definitely against the state and federal law unless someone (like an actual law enforcement agency) got a court order.

In her online write-up, Ms. Madathil distills the family law side of the issue more clearly and professionally than I can, so read all about it here.

There are a couple of other areas she doesn’t cover which I also find interesting.

If it’s legal to record your phone call, is it ethical? A few years ago a Nebraska lawyer asked the state’s Supreme Court for guidance. The high court has responsibility for issuing advisory opinions on ethical issues when requested.  In its opinion the justices said it’s a best practice to ask permission before punching the record button. However the opinion added if no law is broken “an attorney does not act unethically by recording a conversation with a third party without disclosure of such recording.”  

The American Bar Association added strict rules against secret taping in 1974 (heard of Watergate?) but dropped its prohibition in 2001.

Reporters may be the best practitioners, or worst offenders. It is often with good intentions. Yes, I have recorded people I’ve contacted without them knowing it, but I do so rarely. I have no problem justifying those few occasions as both a favor to the person being recorded in the hope of adding accurate quotes to a story. It also serves as a defense against the all too common “I never said that” reaction after a story airs. In my radio work for NET News I always ask before recording when I want to use an interview in a broadcast story. (But it's no small irony that if I recorded a phone call that I did not use in a broadcast I could quote freely from the conversation for an article on the NET News webpage.)

The tricky part for reporters, or anyone else, becomes when you’re talking to, and potentially recording the conversation with, someone from another state. These laws vary when crossing borders. Getting that surreptitious evidence on a spouse, or legal client, or news source in Nebraska may be legal inside the state border, but when calling Michigan or Montana or one of the ten other states you need consent from everyone on the line before capturing the call.

If you want more information about the guidance given journalists and the laws for recording calls in each state, check out the terrific guide prepared by the Reporter’s Committee on Freedom of the Press. You can download it here.

(And in case it’s not obvious, I am not an attorney and do not practice law so please do not consider this any form of official advice. Consult a real lawyer for advice!)

RIOT AT THE BALLPARK! When Playing Baseball On Sunday Would Land You In Jail!

The headline in the Red Cloud (Neb.) Chief on July 25, 1902 was startling by anyone’s measure. SUNDAY BASEBALL RESULTS IN RIOT AT NEBRASKA CITY! SHERIFF ATTEMPTS ARREST OF PLAYERS.

The great baseball riot of 1902 did not make it into Nebraska’s history books.  It was one event in a long series of conflicts, some of them ugly, over one of the most remarkable and heated political issues of the last century. Nebraska was not alone.  Debates over the morality of engaging in "common labor" and recreation on Sunday raged all over the country.

Until 1913 playing baseball in Nebraska on Sunday was reason enough for the sheriff to throw a team in jail.  The Nebraska Supreme Court singled out baseball as an inappropriate activity for what was regarded as “a day of rest” in the secular law and most Christian churches. 

In the late 1800s and early 1900s many states had “Sunday laws” or blue laws. Nebraska’s statute banned a whole list of things that clergy assumed would not be to God's liking.

Headline from the Red Cloud (Neb) Chief, July 1902

“If any person of the age of fourteen years or upward shall be found on the first day of the week, commonly called Sunday, sporting, rioting, quarreling, hunting, fishing, or shooting he or she shall be fined in a sum not exceeding twenty dollars or be confined in the county jail for a term not exceeding twenty days or both at the discretion of the court.”

Strict interpretations of the Bible shaped almost every aspect of secular law at the time. Keeping the Sabbath holy is one of the Ten Commandments.  References appear throughout the Bible 

(Leviticus 23:3:  “Six days shall work be done, but on the seventh day is a Sabbath of solemn rest, a holy convocation. You shall do no work. It is a Sabbath to the Lord in all your dwelling places.”).

That one commandment put many devout Christians at odds with the other passion of the day:  baseball. This was a time when many Nebraska towns hosted minor league teams. Thousands of people filled the stands at games all over the state. A winning team was a matter of civic pride.

Community attitudes about Sunday recreation varied greatly.  In Omaha one local team ignored the protests from some ministers. It wasn't a secret.  There were ads in the paper.  and played Sunday baseball starting in 1900. Sandy Griswold, a sports columnist for the Omaha World Herald, called the law “idiotic.” 

Conflicts were inevitable. Dozens of articles appear in newspapers of the era reporting conflicts over baseball on Sunday. The Women’s Christian Temperance Union, famous for opposition to all liquor, added the evils of baseball to its pious protests along with stopping theater performances on Sunday and “deploring extreme styles of dress.”

Teams in Fremont, York and Scribner all ended up in court at various times. Other towns protested by not buying tickets. When a team in Hershey, Neb. scheduled a Sunday game in 1900 the North Platte Telegraph reported it “was a complete fizzle." Those who stayed away were “a better class of citizens” according to the article. The editor of the paper in Oakland, Neb. refused to run ads for the beloved local team because they ignored the baseball ban.

Dakota County Herald, April 1910

Town team leagues found creative ways to play their games for eager fans.  Bruce Esser, who has an encyclopedic knowledge of early baseball told me teams had to keep moving around to stay out of trouble.  “Sometimes they would move to a town in a different county to play,” Esser said. “In one case they actually went to Kansas to play. They just got on a train, played on a Kansas field and came back.”

But nothing could compare to the baseball riot in Nebraska City.  A group called the Law & Order League insisted the sheriff in Otoe County shut down Sunday baseball. When the sheriff showed up players and angry fans surrounded him.  As the crowd roughed him up someone stole his revolver. 

The entire team, including manager Tim O’Rourk, earned a citation from the sheriff. Apparently they weren't impressed. The team returned to finish the game that same day. 

A few weeks later the county judge threw the case out. The Otoe County Attorney, upset with the verdict, appealed the case of State vs. O’Rourk all the way to the Nebraska Supreme Court.  The justices were asked if baseball could be legally defined as a “sporting” activity and thus an illegal activity on the Sabbath.  The justices not only ruled it qualified as “sporting,” but stated emphatically the Sunday ban served a higher purpose in the community. (Read the ruling here!)

In State v. O’Rourk, Chief Justice Maxwell wrote:  “As a Christian people, desiring to preserve (their liberty) the State has enacted certain statutes, which recognize the fourth commandment and the Christian religion and the binding force of the teachings of the Saviour (sic). Among these is the statute which prohibits sporting (and) hunting.”

Editorial cartoon from The Omaha Bee, 1913

Baseball became the hottest political debate in the state.  An editorial cartoon in the Omaha Bee depicted the three most important issues facing state legislators in 1913:  the death penalty, a woman’s right to vote, and playing baseball on Sunday. 

Lawmakers had tried and failed to have the ban lifted for years. In1913 public opinion tempered and state lawmakers agreed that maybe a friendly game of baseball would not undermine the social fabric of the community. Sort of.  

The revised law left the decision up to individual counties and towns.  Some held local elections.  Some city councils and county boards made the decision. Teams in Omaha did what they had always been doing without interruption:  playing baseball on Sunday.  One town after another dropped the ban. 

Imagine trying to explain to the NCAA why College World Series games couldn't be played on Sunday in Omaha.  

(Editors note:  research for this post came from an NET News radio story that aired on the 100th anniversary of the change in the Nebraska's anti-baseball law.  Listen to it here!)