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Federal Judge Declares Missouri's Ban On Same-Sex Marriage Unconstitutional

Lilly Leyh and Sadie Pierce wait to get their marriage license on Nov. 5, 2014, at the St. Louis recorder of deeds office.
Jason Rosenbaum
St. Louis Public Radio

Updated at 4:50 p.m. with comments from plaintiff Kyle Lawson.

Two days after a state judge in St. Louis came to the same conclusion, a federal judge in Kansas City has struck down Missouri's ban on same-sex marriage.  

"The court does not take lightly  a request to declare that a state law is unconstitutional," wrote Judge Ortrie Smith in the 18-page ruling. "Statutes are passed by the duly elected representatives of the people. Article I, section 33 [of the Missouri constitution] constitutes the direct expression of the people's will. It is not on a whim that the court supplants the will of the voters or the decisions of the legislature. But it should not be forgotten that the Constitution is also an expression of the people's will."

Like many other federal judges, Smith stayed his ruling pending an appeal from Attorney General Chris Koster, who says he will take the case to the full Eighth Circuit Court of Appeals. Koster personally supports same-sex marriage, but has said in the past that he is legally obligated to uphold the laws of the state. 

The American Civil Liberties Union of Missouri represented the two same-sex couples in the lawsuit, which began in state court but was moved to the federal level in July. Anthony Rothert is the organization's legal director.

John Kenny Rodnicks (L) and Robb Gann (R) were the first same-sex couple to get a marriage license in Jackson County on November 7
Credit PROMO Missouri
John Kenny Rodnicks (L) and his partner Robb Gann were the first same-sex couple to receive a marriage license in Jackson County on Friday, Nov. 7

  "It seems like the writing's been on the wall for a long time that the constitution protects the right of same-sex couples to be married," Rothert said. "Certainly it was important to us that Missouri not be last, or even the last 10 states. So now, there are 33 states that are going to have marriage equality and it's great to have Missouri joining what is now the mainstream."

Despite the stay, officials in Jackson County, where the case originated, began issuing marriage licenses at 2 p.m. Friday. 

"Courts are ruling that marriage is a fundamental right of every citizen," Jackson County executive Mike Sanders said in a statement. "Given that marriage is such an important right, sound public policy dictates that right be applied uniformly across the state."

The Plaintiffs

Kyle Lawson wasn't sure he and his fiancé, Evan Dahlgren, would have time to get a marriage license on Friday. But that wasn't going to take away from the excitement Lawson felt about the ruling.

"We're happy. This is awesome," Lawson said. "It's taken a while for this to happen, but we're here, and I'm very happy for it."

Lawson is a high school teacher in the Kansas City area, and missed the phone call with the news from his attorney because he was in class. He had to wait for a planning period to check his voicemail.

"So of course I was in my classroom, just me, and I started jumping up and down, I was so happy," Lawson said. "And after my lawyer gave me the press release and we were allowed to talk to other people, I went to some other teachers that happened to have off hours, and shared the voicemail as well, and they started jumping up and down with me."

Lawson and Dahlgren became involved in the legal fight over same-sex marriage at the request of a friend. That person was a plaintiff in a separate ACLU case over the state's refusal to recognize same-sex marriages performed out-of-state. A state judge in October forced the state to do so, a decision Koster is not appealing. 

Sorting Out Two Rulings

As St. Louis Public Radio's Chris McDaniel reported Thursday, there is a difference of opinion among recorders of deeds across the state as to whether Judge Rex Burlison'sruling on Wednesday applied statewide, or only to the city of St. Louis. 

Judge Smith and Burlison, a St. Louis circuit judge, reached the same legal conclusion: Missouri's constitutional and legal bans on same-sex marriage violate the U.S. Constitution. Attorney General Koster decided not to stop clerks from issuing marriage licenses while he appeals the state court ruling, but Judge Smith at the federal level immediately issued a stay.

The stay at the federal level has no legal impact on the state ruling, attorneys agreed. Clerks who want to continue to issue marriage licenses may do so. But A.J. Bockleman, the executive director of the LGBT advocacy organization PROMO, said some recorders who do not believe that Burlison's ruling applied statewide may use the federal stay as cover.

"Historically, there's been that divide between the city of St. Louis and much of the rest of the state that predates the LGBT community," Bockelman said. "You have jurisdictions that do not want to recognize the authority of the St. Louis court. And on top of that, you have an issue that is viewed by some as very controversial. So, the combination of the two is leading a number of people not wanting to recognize these decisions."

Tony Rothert with the ACLU said the organization is prepared to file additional lawsuits if needed.

"And we have a good idea of how that lawsuit is going to go," he said. "Separate from whether or not they are bound by the order from Judge Burlison or the order from Judge Smith, they are still bound by the constitution."

Smith's ruling comes aday after the 6th Circuit Court of Appeals in Cincinnati, Ohio, upheld vote-approved bans on same sex marriage in Michigan, Ohio, Kentucky and Tennessee. 

During a stop at North Glendale Elementary School in St. Louis County Friday, Gov. Jay Nixon said, "I support folks who love each other being able to get married." But, he added, he would like to see appellate courts weigh in before counties across Missouri begin issuing marriage licenses to same-sex couples.

"I think getting an appellate decision so that's clearly applicable throughout the area is an important guarantee that there's equality of operations throughout the state," Nixon said.

Credit Courtesy of Aleisha McGee
Aleisha McGee and her partner of two years, Keisha Frazier, are planning to get married in Jackson County today.

A Roller Coaster Day

Aleisha McGee and her partner of two years, Keisha Frazier, had planned to travel to Iowa this summer to get married, where same sex marriages are legally recognized.

That was before news broke of same sex couples flooding St. Louis City Hall in the wake of Judge Burlison’s decision.

The couple lives in Kansas City and McGee rushed to send Frazier a Facebook message.

 “She was like, ‘are you ready to go today?’” McGee said.  

Instead, they decided to hold off until Friday next week.  Then came word of Judge Smith’s decision.

“This morning it was, maybe we don’t have to leave, maybe we can do it right here, maybe we can go the courthouse,” McGee thought.

By midmorning, that option seemed to be off the table, since Smith's ruling included a stay.

“The thing that we’ve learned with same-sex marriage, we don’t get too excited about anything,” McGee said.

But with a 6-month-old son, she said getting married is the final step to completing their family.  And McGee said taking that step in their home state is about more than convenience.

“We want that to be something that our son sees, that his mothers have equal rights in the state that they live in,” McGee said.

And then came one more twist.  Despite the stay issued by Smith, at two o’clock Jackson County began issuing marriage licenses.  
McGee put their son down for a nap, hopped in the shower, called her friends and pulled a wedding dress out of the closet.
“We’re very excited, I could just about jump out of my skin!” McGee said. 

Follow Rachel Lippmann on Twitter: @rlippmann

Follow Tim Lloyd on Twitter: @TimSLloyd

Dale Singer of St. Louis Public Radio contributed information for this story.

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Please click on the following link to respond through our Public Insight Network: Have your views on same-sex marriage changed over time?

Rachel is the justice correspondent at St. Louis Public Radio.
Tim Lloyd was a founding host of We Live Here from 2015 to 2018 and was the Senior Producer of On Demand and Content Partnerships until Spring of 2020.