At Koenig | Dunne, we have always believed in the dignity of marriage for all couples. In 2014, we partnered with the ACLU of Nebraska to file the landmark federal lawsuit Waters v. Ricketts on behalf of seven courageous same-sex couples to secure the legal right to marry in Nebraska.
On March 2, 2015, the U.S. District Court for Nebraska struck down Nebraska’s constitutional ban on same-sex marriage. This victory was not just a legal milestone, it was one of the most meaningful moments in our firm’s history.
The Current Risk to Marriage Equality in Nebraska
The freedom to marry in Nebraska exists today because of the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges, which requires all states to license and recognize same-sex marriages. But Nebraska’s Constitution still contains an explicit ban:
“Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex … shall not be valid or recognized in Nebraska.” —Neb. Const. art. I, § 29
That provision is unenforceable today only because Obergefell overrides it. If the Supreme Court were to overturn Obergefell, Nebraska could immediately revert to enforcing its constitutional ban.
What’s Happening Right Now: The Obergefell Challenge
The case now before the Supreme Court stems from Kim Davis, a former Kentucky clerk who refused marriage licenses to same-sex couples on religious grounds. She is asking the Court to explicitly overturn Obergefell. The Court will decide this fall whether to hear the case. If it does, oral arguments could be held next spring, with a decision expected by mid 2026. Most legal experts believe the Court is unlikely to take the case, given the complexity and stability of Obergefell precedent, however the stakes are high.
Even though marriages already performed would remain protected under the 2022 Respect for Marriage Act, which requires all states and the federal government to recognize marriages valid in other jurisdictions, overturning Obergefell would open the door to significant legal and political erosion of marriage rights.
What Could Happen to Existing Marriages
The Respect for Marriage Act requires all states, including Nebraska, to recognize marriages that were valid where performed, regardless of the couple’s sex. This means same-sex couples already married would keep legal recognition in Nebraska, and couples could marry in another state and have it recognized here.
However, the Act does not require Nebraska to issue marriage licenses to same-sex couples. If Obergefell were reversed, Nebraska’s constitutional ban could be enforced again, ending the ability to marry here unless state law changes.
Steps Same-Sex Couples Can Take Now
While no legal document can perfectly replace the protections of marriage, same-sex couples can create a strong “web” of agreements to preserve their rights if state recognition disappears.
A. Estate Planning
· Wills naming each other as primary beneficiary and personal representative.
· Revocable living trusts to transfer property outside probate.
· Transfer-on-death deeds for real estate.
· Pay-on-death designations for bank and investment accounts.
B. Medical & End-of-Life
· Health care power of attorney for medical decision-making.
· Living will for end-of-life preferences.
· HIPAA authorization to access medical information.
C. Financial & Property
· Durable power of attorney for financial decisions.
· Joint tenancy with right of survivorship for property and accounts.
· Co-ownership agreements for major assets.
D. Parental Rights
· Second-parent adoptions, even if both parents are on the birth certificate, to secure parental rights against changes in marriage law.
At Koenig | Dunne, we remain steadfast in our advocacy for LGBTQ Nebraskans. We were there in 2015 when the freedom to marry came to our state, and we are here today, to fight for and to help you protect your family, your rights, and your future.
If you are concerned about how a change in federal law could affect your family, contact us to schedule a consultation. We can help you put legal safeguards in place now, so you are prepared for whatever comes next.