Nebraska’s highest court has found the state’s no-fault divorce law to be constitutional, despite a Hastings man’s challenge to the 48-year-old law.

In an opinion issued Friday, the Nebraska Supreme Court affirmed the dissolution decree in the 2018 divorce case of Michael and Debra Dycus.

Michael Dycus doesn’t want to be divorced for religious reasons and asked the court to set aside the dissolution.

His attorney, Bob Sullivan, formerly of Hastings and now of Wahoo, argued before the Supreme Court on Sept. 3 that recent decisions by the U.S. Supreme Court caused no-fault statutes to no longer be constitutional, due in part to violations of one party’s right to due process and equal protection of the law.

Sullivan contended the U.S. Supreme Court made fundamental changes to the understanding of marriage in United States v. Windsor (2013) and Obergefell v. Hodges (2015), both landmark cases concerning same-sex marriage.

In Windsor, the court held that Section 3 of the Defense of Marriage Act, which denied federal recognition of same-sex marriages, was a violation of the Due Process Clause of the Fifth Amendment. In Obergefell, the Court ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the 14th Amendment.

Sullivan argued that by recognizing an individual’s fundamental right to marriage as inherent in the liberty of the person, a marriage can’t be dissolved without due process of law as part of that right.

In the Nebraska Supreme Court’s opinion, the court said Dycus’ procedural due process argument rests primarily on the liberty interest in choice of identity discussed in Obergefell before it held that the fundamental right to marry is held equally by same-sex and opposite-sex couples.

“Michael asserts that he ‘has defined and expressed his identity as the spouse of [Debra],’ which is therefore a liberty interest protected by the 14th Amendment,” the court wrote. “Michael fails to acknowledge that by bringing this action, Debra expressed her own intimate choice to identify herself as a person who is not married to Michael.”

The court said there is nothing in the recent decisions on the “right to marry” suggesting a liberty interest in forcing a plaintiff to stay in a broken marriage because the defendant wasn’t at fault. The court in Obergefell pointed out that its holding was limited to the rights of two consenting adults, not whether one could be compelled to be married.

Nebraska’s no-fault divorce law was approved in 1972. It allows a judge to dissolve a marriage if both spouses declare that the marriage is irretrievably broken, or if one spouse makes that statement and the other doesn’t deny it.

If a spouse disputes that the marriage is beyond saving, then the judge is required to determine the chances that the marriage can be salvaged before issuing a ruling.

All states allow some form of no-fault divorce, meaning a spouse isn’t required to prove that the other destroyed the marriage through infidelity, abuse or other damaging acts.

The court found no merit in Dycus’ assertion that under Nebraska’s no-fault dissolution statutes, unwilling defendants in dissolution actions are being deprived, without due process of law.

“We find no merit to Michael’s argument that the liberty interests recognized in Obergefell and Windsor require something procedurally different than what is provided under the Nebraska no-fault divorce statutes,” the court said.

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