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Nebraska same-sex marriage ban unwavering

Published August 9, 2014 11:31 am

This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Omaha, Neb. • As state bans on same-sex marriages fall across the country, some Nebraska officials are holding strong to that state's status of having one of the nation's most restrictive laws, which affects some of the most basic aspects of gay couples' lives — from driver's licenses to parenting rights.

Nebraska voters passed a state constitutional amendment in 2000 banning same-sex marriages, civil unions or even legalized domestic partnerships, and it has withstood all legal challenges. The state's hard-line stance is especially jarring when compared to neighboring Iowa, which was one of the first states to legalize same-sex marriage in 2009, says Charlie Joughin, spokesman for Washington, D.C.-based Human Rights Campaign.

"If you live in Council Bluffs, Iowa, and work in Omaha, just driving across the (Missouri) river, you immediately lose any and all legal connection to your spouse and your family," he said.

Federal appeals courts covering nearly half the United States will soon hear arguments on gay marriage, after numerous bans were struck down in the last eight months. A federal judge ruled Nebraska's ban was unconstitutional in 2005, but an 8th U.S. Circuit Court of Appeals panel reversed the decision a year later.

Sue Stroesser, 51, learned how far-reaching Nebraska's ban is when she recently moved back to Omaha after spending years in Washington state and Iowa. Stroesser and her partner of 30 years were married in Iowa in 2009, and she took her spouse's last name.

She had no trouble getting a new Social Security card and passport with her married name. But when she went to a Department of Motor Vehicles branch this summer for a new Nebraska driver's license, she was denied.

Stroesser had held a Nebraska driver's license years earlier under her maiden name. When the clerk asked for documentation to corroborate the name change, Stroesser provided her marriage certificate. The DMV wouldn't accept that, Stroesser was told, and a passport or Social Security card wouldn't work, either.

"I was in tears," Stroesser said. "I couldn't believe it. I just had this overwhelming feeling of injustice. I just picked up my papers and left."

The agency's legal director told Stroesser that in order for a license with the married name, she'd have to have it legally changed through the court system. Nebraska DMV Director Rhonda Lahm said her agency is simply following state law, and noted that the policy rejecting out-of-state, same-sex marriage licenses was in place before she took over.

Lahm also acknowledged she has the authority to change that policy — but won't.

"I feel that I'm following the Nebraska Constitution," she said. "If the courts determine and say, 'You need to do something different,' we would do what the courts say."

Last year, the U.S. Supreme Court ruled it was unconstitutional to deny federal benefits to same-sex married couples under the federal Defense of Marriage Act, but it stopped short of forcing states to legalize or recognize gay marriage.

The state attorney general's office didn't respond to repeated requests for comment on whether all licensing agencies have been advised to follow a single standard when dealing with married names of same-sex couples.

Amanda Bergeron-Bauer, 34, and her partner of 15 years, Crystal, have been married less than a year, but legally changed their names in 2009 after deciding to have a child. Amanda lives with the nagging fear that should anything happen to her, her 5-year-old son could be taken from Crystal, who is not recognized by Nebraska as a parent.

A parental power of attorney allows Crystal to make decisions for the boy, but Amanda must have the document notarized every six months because state law limits the duration of the order. If she were unable to execute another authorization, it's unclear how Crystal could legally claim custody.

A spokeswoman for the Nebraska Department of Health and Human Services said the agency couldn't answer legal custody questions because similar issues have been raised in a pending lawsuit challenging a policy of preventing same-sex and all unmarried couples from serving as foster parents.

The couple doesn't want to leave Nebraska.

"We have family here. We have a support system here," Amanda Bergeron-Bauer said. "... And you could make the argument that things aren't going to get any better for same-sex couples if all the same sex couples leave Nebraska."

Proponents of gay marriage hoped the Nebraska Supreme Court would open the door to legally recognizing gay marriage in the case of a lesbian couple seeking a divorce in Nebraska, but the court dismissed the case in June on a technicality. Joughin said more challenges to the ban are likely.