(CN) — The quest of two Nebraska inmates to get married virtually while incarcerated in separate facilities landed before an Eighth Circuit panel Wednesday, which wondered why the issue was being litigated at all.
During an often contentious hearing, itself held virtually because of safety concerns during the Covid-19 pandemic, the two sides fought over what the word “presence” means in state marriage statutes, and whether the law implies a strict requirement of physical presence.
“The statute doesn’t require physical presence,” attorney Michael D. Gooch said, noting that the word “physical” is not included in state laws governing wedding ceremonies. Along with ACLU of Nebraska, Gooch represents the two inmates — Paul Gillpatrick and Niccole Wetherell.
In rebuttal, Assistant Attorney General Ryan S. Post argued that having to make a distinction between physical and virtual presence wasn’t even conceivable when the marriage law was enacted.
“There was no reason to define presence in 1866,” Post said.
Another major issue in the case, one the panel repeatedly brought up, is that Gillpatrick and Wetherell have already been granted a marriage license by a county clerk.
“Why doesn’t the fact that they have a license settle the issue?” one of the judges asked.
Post ceded the marriage itself is valid.
“They have a right to get married. We don’t dispute that,” he said. “The piece of paper they got was a valid piece of paper.”
Post instead argued on narrow ground that the wedding ceremony is required to physically occur in the same county where a marriage license is granted. As the two inmates are jailed in separate counties, the Nebraska corrections department has no obligation to honor their request.
“It’s purely on the matter of whether state law allows it,” Post said. “If inmates make a request outside the law, the state has no duty to fulfill it.”
But the judges kept coming back to the inmates’ marriage license, stating it isn’t the corrections department’s job to decide if that license is valid but to carry out a valid request.
“That’s a decision someone who is not the warden is going to have to make,” one of the judges said.
The state is appealing a federal judge’s 2019 ruling that the corrections policy is invalid. The judge ordered corrections officials to approve the prisoners’ request for an “e-wedding ceremony.”
On behalf of the inmates, Gooch pointed out that the prisons are merely attempting to deny his clients the right to have a wedding ceremony.
“They asked for permission to have a ceremony. They didn’t ask the prisons to determine the validity of their marriage license,” Gooch said.
Arguing more broadly, Gooch invoked landmark marriage cases, including Loving v. Virginia — the landmark civil rights case that found bans on interracial marriage unconstitutional.
“Marriage is fundamental and is a good thing. We believe that should guide your decision,” Gooch told the judges.
Both Gillpatrick and Wetherell are serving lengthy sentences and are unlikely to ever meet.
Gillpatrick was sentenced up to 90 years in the state penitentiary in Lincoln after being convicted for the 2009 murder of a former Omaha firefighter. Wetherell is being held at the Nebraska Correctional Center for Women in York on a life sentence for her role in the 1998 stabbing death of a Bellevue man.
The two met through a mutual friend before they were imprisoned and have been engaged for close to a decade, according to an ACLU statement. Of his fiancée, Gillpatrick said, “She makes me laugh, she brings smiles to my face every day and I want to marry her.”
The arguments were heard by U.S. Circuit Judges Duane Benton, Ralph R. Erickson and L. Steven Grasz.
Because reporters were only allowed to listen to the hearing by telephone and could not see the video feed, Courthouse News is unable to accurately attribute quotes to specific judges.
During the plaintiff’s arguments, one of the judges asked attorney Gooch why he thought the state would be opposed to two consenting adults getting married. In fact, two of the judges seemed baffled at times why this case was being argued in the first place.
Gooch answered that he had asked this question of corrections officials during deposition but had not received an answer, beyond that the law allows it.
“Why the generality of the law should be used to deny these people to be married is a mystery,” Gooch told the panel.
Beyond human and dignity issues at play, there is also the issue of cost to taxpayers. Last August, Nebraska was ordered to pay $73,818 to Gillpatrick and Wetherell in costs and attorney fees. Add that to the state’s own costs and this case represents a hefty bill for taxpayers, all for the purpose of stopping a virtual wedding ceremony between two consenting adults who happen to be inmates.