The Nebraska Constitution prevents same-sex partners who have married in other states from getting divorced in Nebraska, a state judge told a lesbian couple seeking an end to their 2003 marriage.
The ruling late last month came as no surprise to legal experts, who say state courts nationwide are struggling with the problem.
Ken Upton Jr., an attorney for the advocacy group Lambda Legal, said state laws and constitutional amendments in opposition to same-sex marriage are a departure from the legal reciprocity states historically have paid to each other and “are just beginning to create untold problems we have not been forced to face before.”
“The first thing we tell same-sex couples who live in a non-recognition state: Think long and hard before you get married and return home. Not only do you face the lack of access to divorce courts, you lack the safeguards that state marriage laws provide different-sex married couples,” he said.
Brenda Mueller of Nebraska City filed for divorce from Deborah Pry in September in Otoe County District Court. Her filing said the women had agreed to a custody arrangement for their daughter and settled other matters related to their separation.
The women married in August 2003 in Vermont, Mueller's filing said. Vermont approved same-sex marriage in 2009, but gay couples were granted civil unions there in 2000.
District Judge Randall Reh-meier ruled that he couldn't grant the divorce. He cited the definition of marriage as being between a man and a woman that is part of a voter-approved amendment to the state constitution. He said courts in Connecticut, Pennsylvania, Rhode Island and Texas — none of which allows for same-sex marriage — have also denied divorces for gay couples married outside their borders.
Rehmeier did approve the proposed custody agreement, court records show.
The judge's decision was first reported by the Nebraska City News-Press.
Mueller declined to comment on the judge's ruling. Messages left for Pry were not returned.
Iowa, Connecticut, Massachusetts, New Hampshire, Vermont and the District of Columbia issue marriage licenses for same-sex couples, and New Jersey allows for civil unions. Maryland, New York and Rhode Island recognize same-sex marriages performed in other states.
R. Collin Mangrum, a Creighton University law professor, said federal law allows states to decide whether to recognize same-sex marriages performed elsewhere.
“As far as I know, no state court will grant a divorce in a same-sex marriage if the state does not recognize the marriage,” Mangrum said. He suggested the women would have to return to Vermont to divorce.
But Upton said that may also prove difficult. Some states may allow a nonresident gay couple to marry, but none grants them access to its courts to get a divorce, he said.
Same-sex divorce has been causing a dilemma in Texas, where an Austin judge granted a divorce last February to a couple married in Massachusetts in 2004. A day after the decision, the state attorney general fought to recall the divorce because Texas has a constitutional ban on same-sex marriage. An appeals court ruled this month that the state had no standing in the case and couldn't intervene.
Seventy percent of Nebraska voters approved the constitutional amendment banning same-sex marriage in 2000. U.S. District Judge Joseph Bataillon ruled in 2005 that the measure was too broad and deprived gays and lesbians of participation in the political process, but his decision was overturned by an appeals court.