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.

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.