Same-Sex Divorce: Nebraska's Supreme Court Asked to Untangle a Knotty Marriage.

If the state won't recognize your marriage will it entertain your divorce?

The Nebraska Supreme Court heard oral arguments in a landmark case on same-sex divorce on May 27. While other judges hear cases direct attacks on their laws banning gay marriage, Nebraska’s law was upheld nearly a decade ago. 

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Don't expect a decision on the case until this fall at the earliest. 

The case, Nichols v. Nichols, provides two interesting angles. It’s one of the few instances where there’s been a discussion about how states that don’t want same-sex marriage should legally deal with couples that marry across their borders.


It was never the intent of the otherwise very private couple involved to have their personal lives be spotlighted in a high-profile legal battle. Speaking to reporters after the hearing Megan Mikolajczyk, who represents Bonnie Nichols said "we didn’t bring this case to challenge the Nebraska Constitution. We brought this case because we have a valid Iowa marriage that needs to be dissolved."
Nonetheless, proponents and opponents are using court filings as an opportunity to air fundamental arguments in a courtroom.

Assistant Attorney General Jim Smith argued since Nebraska amended its Constitution through a referendum approved by the state's citizens, ending or changing the state's acceptence of gay marriage would "in effect disenfranchise 70 percent of Nebraska’s voters by having this court adopt a construction of the United States Constitution, which has not been recognized by the United States Supreme Court." 
 

As expected, there was more technical talk than passion during the oral arguments. Questions from the justices, and there were fewer than normal, focused either on the implications of recent federal court rulings overturning same-sex marriage restrictions in other states and a technical issue left over by the judge in the lower court case that is was on appeal.

Here’s a Q&A on the case:

What are the basics?

Bonnie Nichols, legally married in Iowa, challenged the ruling of a Lancaster County District Court judge denying her a divorce from her lesbian spouse because the relationship is not legally recognized in Nebraska. Nichols v. Nichols is the first challenge to the same-sex marriage law in a Nebraska court since voters approved it 14 years ago. When turning down the request for a divorce District Court Judge Stephanie Stacy wrote “this case requires navigation through areas of Nebraska jurisprudence which presently are uncharted by Nebraska's appellate courts.”

What is the law in Nebraska?

In 2000 Nebraska voters added an amendment to the state’s constitution defining opposite-sex marriages as the only relationships to be recognized by law. 

Nebraska State Constitution Article I, Section 29 reads:

“Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.”

Wyoming and Arizona do not recognize same-sex relationships but do have laws providing an avenue for dissolving a marriage. Nebraska does not.

If states make their own laws on marriage, what's the case for this divorce?

Bonnie Nichols’ attorney, Megan Mikolajczyk, lists three reasons in her opening brief to the Nebraska Supreme Court:

• Marriage licenses from one state must be honored by another state, whether they provided to heterosexual or homosexual couples.
• Obstacles to ending a marriage violate the couple’s constitutional right to associate, or in this case not associate, with whoever they choose to live.
• Limiting marriage to a man and woman in Nebraska law violates the U.S. Constitution’s guarantee of equal protection for all citizens.

When I spoke to Mikolajczyk a few weeks ago she said “the state of Nebraska tried to make the relationship unavailable. Instead they’ve made a relationship they don’t want in this state permanent. I don’t think that was their intended end result.”

A brief filed by the American Civil Liberties Union supports the Nichols divorce request and adds a few more legal arguments that directly take on Nebraska’s constitutional definition of marriage.

• Denying same-sex couples the right to marry is a form of gender discrimination and thus illegal.
• The recent U.S. Supreme Court ruling striking down the federal “Defense of Marriage Act” supports the idea that Nebraska’s law is a violation of equal protection for its citizens.
• The majority of other states confronted with the same issue have found methods to permit divorce.

Still another brief was filed on behalf of another same-sex couple in the middle of a divorce. They are asking the state Supreme Court to act in advance of their county court hearing to clarify how the judge in their case should proceed.

Who’s opposing the divorce?

The Nebraska Attorney General’s office for one.

It’s the obligation of the state’s top lawyer to come to the defense of the state’s laws. Attorney General Jon Bruning, in the closing months of his term in office, has opposed same-sex marriage in Nebraska and offered legal support to other state’s defending state laws with a traditional definition of marriage.

He’s getting support from the Nebraska Family Alliance and the Nebraska Catholic Conference, both founding members of the Coalition for the Protection of Marriage that helped get Amendment 29 added to the state’s constitution.

What are the arguments against the Nichols’ divorce?

The brief filed by Bruning in the Nichols case was short and to the point. He explained in the brief that in 2006 the United States Court of Appeals of the Eighth Circuit upheld Nebraska’s law and made clear the state had a right to decide who could legally marry. That is the entire foundation of the state's arguement against granting the Nichols couple a divorce.

In January Bruning joined other State Attorneys General in a brief arguing in favor of a similar ban in Nevada. Bruning added his name to the court document stating:

“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.”

That specific argument is not included in Bruning’s filing but it is the foundation of the case he’s made before in support of limiting marriage to opposite-sex couples.

The Amici Brief was filed by the Family Alliance and  Catholic Conference listed a number of other reasons.

• There is no harm in failing to recognize out-of-state same-sex marriages because the couple can still get a legal annulment when "the marriage between parties is prohibited by law."
• Nebraska voters advance an important interest of government: “encouraging child-bearing and child-rearing by married mothers and fathers and preserving accountability of government to voters.”
• Nebraska's marriage laws seek to preserve the social goods marriage has produced across time and cultures.
• “The (U.S.) Constitution has foreseen the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of preserving marriage as the union of a husband and wife or redefining it to include  same-sex couples."

Will recent federal court decisions on same-sex marriage make a difference?

That is tough to answer. A great deal has changed since the U.S. Court of Appeals ruling in the Nebraska case. In addition to, and perhaps because of, the U.S. Supreme Court ruling on the Defense of Marriage Act, a number of states have decided to no longer defend the traditional definition of marriage. At last count 19 states have granted same-sex couples legal recognition.

However, the justices on Nebraska’s high court, in actuality, are not being asked to overturn Amendment 29. They have been asked to grant a divorce.

What are the justice’s options?

I’m not an attorney. There could be other avenues, but base on interviews with the participants and the knowledgeable, here’s the short list:

• Throw out Amendment 29
• Uphold Amendment 29 and deny the divorce.
• Rule they cannot grant a divorce in this case, but advise that Nebraska needs a legal mechanism to deal with these cases.
• Toss the case back to the District Court. This could happen because of a procedural discrepancy in the manner Judge Stephanie Stacy routed the case to the appellate courts.

How’s it going to turn out?

Not a clue. Look for a ruling sometime this fall.

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!)