Lawsuit challenges Nebraska's ban on same-sex marriage

Nov. 17, 2014, 5:40 a.m. ·

Nick Kramer, right, discusses Nebraska's same-sex marriage ban as his husband, Jason Cadek, holds his daughter Alice and Sally Waters looks on. (Photo by Fred Knapp, NET News)

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A lawsuit filed Monday in U.S. District Court in Omaha challenges Nebraska’s ban on same-sex marriages.

Currently, same-sex marriage is legal in 33 states. The lawsuit for seven couples filed Monday aims to add Nebraska to that list.

Among the plaintiffs is Sally Waters of Omaha. Waters, who’s 58, married her wife Susan, 53, while living in California in 2010. Sally and Susan, who have three adopted children, have since moved back to Nebraska.

Sally Waters said she’s been diagnosed with stage 4 breast cancer. But because Nebraska doesn’t recognize their marriage, Sally said, if she dies, Susan will have to pay an 18 percent inheritance tax on property they own jointly. She also won’t get Social Security survivor benefits or tax protection on distributions from Sally’s 401(k) retirement account.

Sally Waters spoke at a news conference Monday.

“When I die, my wife and my kids will face an emotional burden that’s indescribable and a crushing financial burden. That’s why we are here today,” she said.

Another plaintiff, Nick Kramer, said he and his husband Jason Cadek got married in Iowa and have a three-year old adopted daughter named Alice. But because Nebraska doesn’t recognize their marriage, only Nick and not Jason is considered her father. Nick said if something happened to him, Alice could become a ward of the state or be placed in custody of his family instead of with Jason, whom she calls “Daddy.”

If the lawsuit succeeds, it will overturn the ban approved by Nebraska voters in 2000. Amy Miller of ACLU Nebraska, which is helping with the lawsuit, said that vote should never have happened in the first place. “We’ve been asked several times already about ‘Aren’t we a democracy -- didn’t the Nebraska voters vote on this in 2000?’” Miller said. “And they did, but it should never have gone to a vote.

“America is a democracy for all things but constitutional rights. The constitution protects the individual. It protects us from having the majority rule on fundamental rights that all of us share,” Miller said. "And we also in a democracy have the beautiful saving grace of the courts.”

Those same courts are where incoming Nebraska Attorney General Doug Peterson said he will try to save the ban. “When I take the oath of office in January, what I will simply say in that oath of office is that I will be sworn to upholding the laws for the state of Nebraska -- the constitution and its statutes,” Peterson said.

“And so that’s what we intend to do in defending the Nebraska Constitution on marriage,” he added.

Peterson said he thinks the federal district court that two weeks ago upheld same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee got it right. In his opinion upholding those bans, Judge Jeffrey Sutton wrote, “When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers.”

Sutton continued it would be better in this case to allow change through politics, so gay and straight people “become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”

That decision by the Sixth Circuit Court of Appeals conflicts with decisions in several other federal courts. On Monday, two Michigan women asked the U.S. Supreme Court to hear an appeal. If the court takes that case, the issue of same-sex marriage bans could be decided nationwide by June.