Will same-sex couples ever divorce in Nebraska?

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June 16th, 2014

Omaha, NE — “To have and to hold. Til death do us part.”

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These are the words that couples often pledge to each other on their wedding day.

But for many couples, their hopes for a lasting marriage often ends in divorce…if they can even separate at all.

In a recent Nebraska District Court case, Nichols v Nichols, Bonnie Nichols was denied a divorce from her spouse Margie Nichols. The couple was legally married in Iowa in 2009.

Martin Cannon is an attorney for the Thomas Moore Society of Omaha. The organization is a not-for-profit, national public interest law firm that exists to restore respect in law for life, marriage, and religious liberty.

Cannon adamantly believes the Nichols divorce shouldn’t be granted under existing Nebraska law.

“Iowa allows same sex marriages. Nebraska has an amendment to its constitution that says we will not recognize same sex marriage,” Cannon said. “The district court in Nebraska refuses to grant the divorce because doing so would require it to first recognize the marriage.”

However, Amy Miller, the legal director for the American Civil Liberties Union in Omaha, believes otherwise.

“The Nebraska Supreme Court could rule, in a very narrow way for the purposes of obtaining a divorce, will recognize an out of state marriage license in order to end and dissolve that relationship because it’s the only fair and equitable thing to do,” Miller said.

Miller said the same sex couple is in a legal limbo because some states and the federal government view them as legally joined while Nebraska does not. This raises a lot of constitutional questions, according to Miller.

“When they go to file taxes, do they file as a married couple or as single people? Can either of them now marry a man if she falls in love with someone and want to be in an opposite sex relationship? Or would they be banned from ever getting married to a man because they are already legally married in the eyes of Iowa and the federal government,” Miller said.

Arguing from the other point of view, Martin Cannon said granting the same sex couple a divorce would violate the rights of the voters of Nebraska to define what constitutes a legal marriage in their state.

“Granting the divorce and giving the parties the various awards that exist in a divorce preceding and that flow from a recognition from the marriage would do an end run around the marriage amendment and basically take 70 percent of the electorate’s decision and ignore it,” Cannon said.

Cannon said he doesn’t expect the U.S. Supreme Court to throw out a state constitutional amendment on equal protection grounds because it’s unfair to homosexual people.

“I don’t see the legislature doing anything to significantly modify the amendment,” Cannon said. “I can certainly see the legislature crafting statutes that sort of work around the amendment to support it or execute it or whatever you would want to say. But if the leg were to draft a statute that says a Nebraska court can grant a same sex divorce I would think that would be subject to immediate criticism and attack as being a violation of the Nebraska amendment.”

ACLU attorney Miller said there needs to be a legal right that no matter where a same-sex couple’s marriage takes place, they have a right to get a divorce. She said a judge should be able to dissolve the relationship, to divide up the community property fairly and allow the couple to start a new life unencumbered by a legally sanctioned marriage they can’t dissolve.

“This couple is in a position where they need clarity on whether they are going to be considered married for the purpose of getting a divorce or if they are locked forever in a relationship that they are emotionally done with,” Miller said.

Both the ACLU of Nebraska and the Thomas Moore Society of Omaha filed amicus briefs on the case.

The Nebraska Supreme Court has yet to reach a decision.

 

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