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Nebraska Court Dismisses Same-Sex Divorce Appeal

Saturday Jun 14, 2014
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Nebraska’s Supreme Court dismissed an appeal Friday by woman legally wed to another woman in Iowa who is now seeking a divorce in the state where they live, saying it didn’t have jurisdiction and therefore could not address the constitutional arguments raised about same-sex marriage and divorce in Nebraska.

Bonnie Nichols of Raymond married her longtime partner in 2009 and filed for divorce last year, but a Lancaster County judge ruled that the court couldn’t grant a divorce without recognizing the marriage.

Same-sex marriages began in Iowa in 2009, after the state’s Supreme Court struck down a law that defined marriage as the union of one man and one woman. Iowa state law requires couples seeking a divorce in the state to live there for one year beforehand. Nebraska, meanwhile, doesn’t recognize same-sex marriages, civil unions or domestic partnerships because of a constitutional amendment that was overwhelmingly approved by voters in 2000.

The state attorney general’s office, in a friend of the court brief, argued that allowing the divorce would run afoul of the state’s constitutional amendment and that granting the divorce "would in effect disenfranchise 70 percent of Nebraska’s voters (who voted for the amendment)."

Nichols’ attorney, Megan Mikolajczyk, had argued that the U.S. Constitution’s "full faith and credit" clause requires Nebraska to recognize the marriage.

But Nebraska’s Supreme Court dismissed the case without addressing constitutional issues, saying that because Nichols had appealed from a conditional order and not a final judgment, it lacks jurisdiction over the appeal.

Last year, the U.S. Supreme Court struck down part of the federal anti-gay marriage law, the Defense of Marriage Act, which had kept legally married same-sex couples from receiving tax, health and pension benefits available to other married couples. The court did not address similar state laws that are in effect.

Nineteen states and Washington D.C. currently recognize same-sex marriage. Right-to-divorce cases have cropped up in other states with constitutional bans on same-sex marriage, after partners wed in states where they could.

"Academics and legal scholars are probably very interested in the procedural issues here, but (the decision) doesn’t go at all to divorce or marriage or the constitution or any of the substantive issues," Mikolajczyk said.

The Nebraska Attorney General’s Office declined to comment on Friday’s decision.

The Lancaster County judge had issued an order giving Bonnie Nichols 15 days to file an amended complaint to pursue a different legal theory to try to dissolve her union to Margie Nichols. The order said that if she did not, the case would be dismissed with prejudice, meaning it can’t be refiled. Bonnie Nichols did not file an amended complaint and instead appealed.

The trial judge has already contacted lawyers in the case to possibly discuss entering a final order that Bonnie Nichols can appeal, Mikolajczyk said.

"We plan to keep moving forward," she said. "I don’t think this is the end by any means."

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