On a recent Monday a federal judge blocked Nebraska’s ban on same-sex marriage, calling it “repugnant,” and 14 plaintiffs celebrated the rights they’d apparently won. But that Thursday the 8th Circuit Court of Appeals placed their rights aside and won’t likely act before the U.S. Supreme Court rules in June.
Meanwhile, Gov. Pete Ricketts defended man-woman marriage against his idea of an “activist judge” and Attorney General Doug Peterson warned against law based on “the emotional arguments of a certain class of people.”
In other words, such people as the plaintiffs who brought the American Civil Liberties Union case to Judge Joseph Bataillon. They represented all the victims of a state constitution that doesn’t just deprive them of the rights enjoyed by other married Nebraskans. It prohibits civil unions and legalized domestic partnerships, and even rejects marriages made in 37 other states and dishonors the federal laws that protect those marriages.
So maybe you should meet some of those 14 people so you can better judge if they pose a threat to traditional marriages.
Ring the doorbell a few blocks north of West Center Street and three rescue dogs crowd to greet you. Sally Waters, 58, adds to their welcome and she’s joined by Susan Waters, 53, and their two adopted daughters, Gabriella (Ella), 14, from Vietnam, and Jaden, 10, rescued from foster care in California.
Sally and Susan are also legal guardians of Kayla Johnson, 18.
And that entire family, minus the dogs, is represented in a New Yorker magazine cover on the living room wall. By Sally’s cousin, artist Chris Ware, it shows the couple side-by-side in bathrobes looking at a mother’s day card while the three girls peek out from the stairwell.
We move to the dining room where I sit taking notes while Josephine sneaks into my lap and licks my chin. She’s one of two little white Shih Tzus that rushed the door along with a white-and-black mix of Labrador and Australian Shepherd. That’s Gus, a newcomer, leaning by my thigh and pleading by proximity for a few pats on the head.
“Our only big dog died,” Sally explained,” and Ella wanted another big dog for her recent birthday.” Thus Gus. It was a school night, so Ella is doing homework and when Sally asks little sister where she stands on a reading assignment Jade says she’d finished 11 of the 12 chapters so has time to check the temperature of some meat cooking in the kitchen.
If this cozy family scene would seem to support the state’s argument that they faced “no immediate or irreparable harm” from Nebraska law, perhaps that’s because Sally Waters doesn’t look like she’s coping with stage IV metastatic breast cancer, now spread to her spine.
As horrible a loss to this family as her death would be, it would also bring financial burdens (e.g., a large inheritance tax on jointly-owned property rather than the spousal advantage) not faced by families whose marriages are recognized in Nebraska. Yes, they’re married. Together in a committed relationship for 17 years, they were joined in a religious wedding at their Omaha church in 1998, then married in 2008 in California.
They moved there in 2002 after adopting Ella because both wouldn’t be recognized as her parents in Nebraska, putting her at risk if something happened to the only legal parent. Missing families and wanting to be closer to their aging parents, Sally and Susan returned to Nebraska with their daughters in 2010.
Susan Sanders, the daughter of a Burwell rancher and a mother who died when she was 8, and Sally Ware, daughter of an Omaha doctor and grand-daughter of Fred Ware, once the managing editor of the Omaha World-Herald, are both native Nebraskans.
“When we married,” Susan recalled, “one of our fights was over whose father’s name we would take, so Sally said, ‘Why not create something new?’”
They wanted something easy to spell, easy to pronounce and with meaning. “I grew up agnostic,” Sally said, then at age 40 “I became a Christian and was baptized in water.” She “came up out of the water,” adding to the meaning of Waters, their new name.
That religious wedding took place at North Side Christian Church where a gay pastor had adopted a Vietnamese daughter. She had to “run it past the elders,” and after weeks of meetings they said yes to the Waters wedding.
“I came out as a lesbian at age 40 to me and my husband,” noted Sally. Susan “came out to myself at 17. It was hard for dad, an old school rancher.” Maybe the ranch roots explain why she’s active rescuing starving horses. Susan likes to say, “I graduated third in my high school class” in Burwell, “then whisper, ‘class of 17.’”
Raised a Lutheran, Susan followed Sally’s path back to spiritual faith. And she drew on the example of a loving relationship set by her grandfather whom she remembers “when he was in his 80s singing, ‘Let Me Call You Sweetheart,’ to grandmother.”
When they traveled across Nebraska with other gay couples to bring their stories to the state, the ACLU trip started east from Scottsbluff, where they talked with six people “very firm in their religious opposition. They were very respectful,” Sally said. “One woman made a point of: ‘I don’t want you to perish.”
(This writer resisted the temptation to channel Dana Carvey’s church lady and snark, “Isn’t that special?” But Susan generously complimented the Scottsbluff crowd on “good questions,” and suggested, “Most gay families want to be surrounded by love.”)
Both women agree that people are more understanding and supportive than when they left Nebraska, two years after a 70 percent majority voted for the state ban in 2000. While the governor and attorney general like to highlight that number, polls don’t suggest that such a majority exists today.
And that’s only relevant if you believe a majority should be free to deny fundamental rights simply by outvoting a minority. If the numbers have changed, all the burdens remain for these families.
You don’t like taxes? “Ask any gay couple married in another state,” Susan mused, “how much they enjoy paying taxes. It’s amazing how many hoops we have to jump through,” filing federal jointly and state singly.
“We get nibbled to death,” Sally agreed, but the greater “fear is for our kids.” Only Susan was legally involved in Ella’s international adoption, while Sally had to sit in the back of the room, “closeted.”
At the time, the oft-patient Sally said, “I can’t take this. A lot of families hold their breath that the state will take their children away.”
For two other plaintiffs, Nickolas Kramer, 42, and Jason Cadek, 37, married in Iowa, their worst fears focus on Alice, their 3-year-old daughter.
Nick, a Montana native whose supportive family has a history of adoptions, is the only legal parent under Nebraska law. After eight years in a committed relationship, he and Jason began studying adoption, a process he wrote about in a Momaha blog.
He described the required home study as “a deep dive into your life” that took four months but usually takes even longer. The match with a birth mother may also take months, but “We received a call within two weeks. Yikes! Our heads began to swim with all the questions of normal expecting parents.”
And in September, 10 months after the process began, “My husband and I headed to Texas to be in the delivery room for our daughter’s birth.” What Nick Kramer called “a magical, wonderful, joyous experience” is shared by the other plaintiffs who’ve met Alice, their African-American daughter whose smile and white flowered dress brightened a press conference following Judge Bataillon’s decision.
That was an encouraging day for Nick and Jason, who were described in the judge’s order as living with “profound stress and insecurity” for a daughter unprotected by Nebraska law. Then a few days later the 8th Circuit “kicked the can down the road,” as Nick put it.
While they wait, he reminded, “Sally Waters could get sicker. I could have an accident,” and Jason would face legal barriers to caring for Alice. Nick cited a recent hospital stay for Crystal Van Kampen, a Navy veteran, and health care complications for a family that includes Carla Morris-Van Kampen, whom she married in Iowa, and Carla’s daughter from a previous marriage.
Variations on the legal burdens face all seven couples who brought suit against the state.
Two other pairs were married in California in 2008, including Marjorie Plumb and Tracy Weitz, who returned to Nebraska, and Randall Clark and Thomas Maddox, who remained out West. In a committed relationship for 30 years, they were born and educated here, own commercial property here, and worry about their legal status if health problems arise during their frequent visits.
Tracy said she and Marjorie “hadn’t realized how hard it would be” when they moved back home without protection of the law, especially for inheritance purposes. But they were happy to find greater acceptance than when they departed.
“Neighbors brought cookies and cupcakes, really welcomed us,” Tracy reported. If the higher courts rule in their favor, she most looks forward to “the dignity.” Yes, the legal problems and the paperwork are important, but more important to her “is not having to be something you’re not.”
Bil Roby, 49, and Gregory Tubach, 57, have been in a committed relationship for 28 years and want to get married in Nebraska. They live in Lincoln. Nebraska is their home, and the home of their friends and extended families.
Sure, like the other couples, they’ve taken all the legal steps available, gone to great expense, but, as Judge Bataillon stated, obtained documents that provide “only a fraction of the protections that marriage would provide.”
Greg was born in Lincoln, Bil in Germany while his father was based overseas in the military, then reassigned to the Lincoln air base. Greg worked for Cliff’s Notes in Lincoln, then the company sent him to another state, but they returned when his father fought terminal cancer back home.
While the law is a big problem, people treat them well. “We’ve never had any repercussions,” Roby said, “even when we lived in Texas. When I had a doctor’s appointment the other day, and was waiting, the receptionist came out and sat in the chair beside me. She told me how proud she was of what we doing in standing up for our rights.”
So they wait to get married in Nebraska after 28 years together. And Roby worries about some of the others, a byproduct of the fact that the plaintiffs now know and care about each other. He had heard that Crystal was in the hospital and he wonders whether Sally will survive cancer long enough to be free of fears for her children.
Susan Waters “was livid when the state argued that ‘no irreparable harm’ was involved” in delaying relief for the plaintiffs. “If on the day of Sally’s death they say she’s single on the death certificate, they can’t repair that later.”
As for Sally, she looks great and says, “I’m good right now.” The doctor gives no time table, and she gets both good and bad news on visits. “I’ve got really important things to be alive for.” She’s on indefinite leave from work as a leadership development consultant for Mutual of Omaha. Susan has worked at Nebraska Medicine, then helped University of Nebraska at Omaha faculty use technology in the classroom. Earlier, they shared an executive coaching and training business.
Given the immediacy of her condition, Sally and Susan were asked by attorney Susan Koenig if they wanted her to bring them forward as a special case, something that had been done in Texas.
“We said no,” Sally confirmed.
The attorney added, “We know who they are, their complete integrity, their values. The privilege one feels to be representing people of this courage and this caliber brings me to tears.”
Koenig lost a gay brother to AIDS and joined the fight for human rights. With this case, “I’ve never felt luckier to be a lawyer in my home state.”
She’s quite willing to make emotional arguments on behalf of a certain class of people. And to call them families.