Divorce case seeks to challenge Nebraska’s marriage amendment

The Nebraska Supreme Court May 28 will hear oral arguments on whether the district courts in the state should be allowed to hear and decide any lawsuit that seeks to dissolve a same-sex "marriage" lawfully entered into in another state.

The case the Supreme Court is reviewing on appeal, Nichols v. Nichols, implicates Article I, Section 29, of the Nebraska State Constitution (I-29), which, in relevant part, states as follows: "Only marriage between a man and a woman shall be valid or recognized in Nebraska."

I-29 is in the Nebraska Constitution as a result of more than enough signatures on Initiative Measure 416 and its subsequent approval by 70 percent of the voters at the general election in 2000.

Bonnie Nichols and her same-sex partner, Margie Nichols, residents of Nebraska, legally entered into marriage in Iowa on Nov. 7, 2009. Same-sex marriage was legalized in Iowa in April 2009. On Nov. 19, 2012, in Lancaster County District Court, Bonnie Nichols, as plaintiff, filed a complaint for dissolution of her Iowa-based marriage to Margie Nichols, the defendant.

The response from the defendant was a Motion to Dismiss, citing I-29 and stating this reasoning: "Since Nebraska does not recognize same-sex marriage, the Court lacks jurisdiction to dissolve a same-sex marriage."

Last Aug. 30, a district judge in Lancaster County sustained the defendant’s motion. Her reasoning was sound: "(P)hilosophy and semantics aside … under Nebraska law a divorce cannot be granted absent an express finding that ‘the marriage is irretrievably broken.’ …

"A finding that the marriage is irretrievably broken – by its nature – cannot be made without recognizing the marriage itself … it stretches logic and common sense to conclude otherwise …

"Granting a dissolution of marriage … necessarily involves recognizing the marriage …

"Nebraska’s constitution prohibits recognizing same-sex marriages …

"(T)o the extent the … provisions of section 42-117 (requiring courts to recognize valid out-of-state marriages as valid in Nebraska) are in conflict with Nebraska’s more specific constitutional amendment … rules of construction dictate that the more specific provision controls."

On Sept. 27, 2013, the plaintiff filed a notice of appeal. The Supreme Court agreed to review the trial court’s decision, bypassing the intermediate court of appeals.

As the district court judge observed, this case involves "areas of Nebraska jurisprudence presently unchartered by Nebraska’s appellate courts."

Make no mistake; the purposes behind this appeal and this case are more complex, extensive and intentional than merely breaking the legal relationship the plaintiff and defendant have under federal law and the law of Iowa. The case also involves an attack on I-29, seeking at least to constrict and weaken it and perhaps to set it up for some lethal punch in the future.

Consider the errors that the appellant alleges were made by the district court’s ruling:

• That the court erroneously dismissed the complaint for dissolution on Section 29 grounds when Section 29 (allegedly) violates Article IV, Section 1, of the U.S. Constitution, requiring full faith and credit; when Section 29 (allegedly) denies the U.S. Constitution’s First Amendment implicit right to associational freedom;

• That Section 29 (allegedly) violates the U.S. Constitution’s 14th Amendment insofar as it prohibits states from abridging privileges and immunities, from denying life, liberty or property without due process of law and from denying equal protection of the laws;

• That Section 29 (allegedly) violates Article IV, Section 2, of the U.S. Constitution, requiring all privileges and immunities of citizens in the several states; and that the district court denied equal protection on the basis of gender.

Consider as well that these parties have alternatives they could implement to avoid a conflict with the Nebraska Constitution; but doing so would fail the objective. For one, they could obtain a divorce in Iowa, although that probably would include either abiding by a one-year residency requirement or challenging it.

Alternatively, these parties presumably could file to have their marriage annulled pursuant to Sections 42-373 and 42-374 of the Nebraska statutes. One basis for annulment is that the marriage is prohibited by law; the marriage was a nullity in Nebraska, never legal or valid in the first place.

Consider as well that both the American Civil Liberties Union of Nebraska Foundation and Legal Aid of Nebraska have jumped into the case with briefs, employing strong rhetoric to condemn I-29.

The Nebraska Family Alliance and the Nebraska Catholic Conference have received permission from the Supreme Court to jointly file a brief that will defend Nebraska’s marriage amendment, the public-policy rationale behind it and the vote of the people.

It seems unlikely that the Nebraska Supreme Court would use Nichols v. Nichols to fully strike down Article I, Section 29, as a violation of the U.S. Constitution. If the court determines the case is properly before it, then the only question it would have to decide is whether I-29 applies so as to bar dissolution of a same-sex marriage, not a question of constitutionality. Of course, the appellant and the groups supporting her position want more than that.

Somewhat odd, if not suspicious, it appears that only the plaintiff/appellant will present an argument to the court. The defendant/appellee did not file a brief and her legal counsel was allowed to withdraw from the case last October. That being the situation, the solicitor general from the office of the state attorney general sought leave to present an oral argument and the Supreme Court agreed to allow 10 minutes for that.

Jim Cunningham is executive director of the Nebraska Catholic Conference, with headquarters in Lincoln. Contact him at jrcncc@neb.rr.com.