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.

Did Floyd The Drug Dog Violate the 4th Amendment of the Constitution?

Okay, it wasn't really Floyd.  It was his handler on the Valley, Nebraska Police Department.  And the question was how long Floyd had to wait in the car before he started sniffing around.  

The Eighth Circuit of the U.S. Court of Appeals had to figure out how long someone should wait to be searched after being pulled over by a K-9 unit suspicious about hidden drugs.  Is 20 minutes too long?  Ten minutes?  Even two?  

UPDATE! The United States Supreme Court overturned the 8th Circuit Court of Appeals ruling in this case. (Read the full opinion here). In a 6-3 decision the justices ruled police may NOT extend routine traffic stop to wait for drug dog to come and sniff. The majority wrote: "Absent reasonable suspicion, police extension of a traffic stop to conduct a dog sniff violates the Constitution's shield against unreasonable seizures."

Using a drug dog is legal, but the courts have said you can’t make someone wait around forever for the search.  A Nebraska drug bust which made its way to the Court of Appeals caused a lot of chatter among cops and defense attorneys.  At the heart of the case were questions about whether the search was reasonable under the Fourth Amendment of the Constitution.  (That’s the one that guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”)  The ruling came down at the end of January. 

Floyd The Dog (Photo: Dean Jacobs, Fremont Tribune) 

Just after midnight on March 27, 2012 Dennys Rodriguez let his car drift off onto the shoulder while he drove through Valley. The sloppy driving caught the attention of Officer Morgan Struble, who had his drug-sniffing dog Floyd riding shotgun.  Struble handed the driver a warning ticket for the bad driving, but he also noticed the heavy smell of too many air fresheners and felt the driver and passenger were a little too nervous. It was a hunch, but Officer Struble was suspicious.  He radioed in for back up and asked Rodriquez if he could walk his dog around the car.  The answer was no.   

The second officer arrived about five minutes later.  Once Floyd the Dog hopped out of the car it didn’t take long for him to react.  Floyd found a big bag of meth.  Rodriquez and his passenger were charged by the U.S. Attorneys office and later convicted.  According to the Court of Appeals ruling "all told, seven or eight minutes had passed from the time Struble had issued the written warning until the dog indicated the presence of drugs."

Rodriguez tried to get his conviction thrown out in part “because the stop was unreasonably prolonged by the dog sniff in the absence of reasonable suspicion to continue his detention."  The three judge panel decided the traffic stop “was not unreasonably prolonged” by waiting for a second officer to arrive in the name of safety.  The conviction stood. Win one for Floyd the Dog and Officer Struble.

What’s the big deal?  As Orin Kerr, the legal writer for the Washington Post, pointed out in his Volokh Conspiracy blog  “this might seem like a really technical question. But it’s actually pretty important.”

In one sense that’s good news for K-9 officers, since the court acknowledged that waiting for another officer to be on hand was a legitimate reason for making someone wait.  In another sense it can be pretty darn confusing these days. The Floyd the Dog case has said one length of time was okay.  In other Federal Court of Appeals districts other times have been acknowledged as appropriate.  Some are longer.  Some are short.  What’s a K-9 officer to do?

Terry Fleck, a retired dog handler and deputy sheriff in California who writes extensively about drug dog legal issues, told me in an email that “handlers simply keep track of their U.S. Circuit's K-9 decisions and abide by their State's K-9 decisions as well.”  In other words, the patrol officers have slightly different rules depending on what court has ruled which way.  Could it take the U.S. Supreme Court to identify a national standard for putting dog sniffs on a clock?  Fleck says its possible, since just last year guidance came from the high court on when it was appropriate to use drug dogs for searches of residences. 

Meanwhile, Floyd The Dog has taken a new job with the Fremont Police Department.

Life sentences thrown out for three juvenile murderers. 23 more could be next.

It’s considered a big step for juvenile justice advocates.  Those favoring tough sentences are not pleased, even if they knew it was coming.

Image Courtesy Photo.com

Douglas Mantich, Eric Ramirez, and Juan Castaneda all committed murder.  They were also teenagers at the time and sentenced to spend the rest of their lives in prison.  Two years ago the rules changed when the U.S. Supreme Court ruled that no juvenile should be handed a mandatory life sentence.  It was considered cruel and unusual punishment.

Nebraska had been slower than some states to follow the Supreme Court’s mandate.  That changed today.

All three inmates had their life sentences overturned by the Nebraska Supreme Court.  Each will not get a new sentencing hearing in the District Court which found them guilty and sent them to jail.  The three will be the first inmates given reduced sentences since the federal court ruling and a resulting change in Nebraska state law ending life sentences for juveniles.

Today’s rulings will likely lead to hearings for 23 others also put away for life when they were still juveniles.  The key was the ruling in Mantich’s case, in which a majority of the court stated that even though the U.S. Supreme Court made its decision only two years ago, it applies retroactively to convictions handed out years earlier.  Two justices in the minority strongly dissented.

It appears all 26 inmates facing a life sentence have filed briefs to have their sentences reviewed, according to the Nebraska Commission on Public Advocacy, which is handling some of the case.  There may be additional delays in setting hearing dates while attorneys wait to see if the state Supreme Court allows a review of today’s rulings.

The cases sent back today for re-sentencing (click on the link to read the rulings).

• Douglas Mantich was 16-years-old living in Omaha when he was involved in a gang-related murder of Henry Thompson in 1993.

• Juan Castaneda and Eric Ramirez were both convicted of several charges related to three separate shootings that occurred in Omaha in 2008.  They were part of a group involved in the killing of Luis Silva and Tari Glinsmann during a series of robberies.  Castaneda was 15-years-old at the time. Ramirez was 17.

  

  Eric Mantich, Eric Ramirez, Juan Castaneda (Dept. of Corrections)