The Missouri Supreme Court is considering whether the state's ban on same-sex marriage also prevents gay couples in Missouri from getting divorced in Missouri courts.
A man identified only as M.S. married his male partner, identified as D.S., in Iowa in December 2012. The couple separated in August 2013, and in January of this year M.S. filed for divorce in St. Louis County. But Associate Circuit Judge John Borbonus ruled that Missouri's refusal to recognize same-sex marriages barred him from granting the couple a divorce.
Attorney Drey Cooley says the status quo places an undue burden on same-sex couples living in Missouri who decide to split up.
"They have to drive hundreds of miles to another state, absent (the Supreme) Court's intervention," Cooley said, "and not only drive and travel to another state, (but) most likely have to reside there and move there for a certain period of time until they suffice that state's residency requirements."
Cooley argued that Missouri can legally dissolve the marriage of a same-sex couple without recognizing same-sex marriage as a whole, as the state currently does with common-law marriages.
"To get a dissolution here, the court doesn't have to recognize, validate, affirm, approve, (or) acknowledge the marriage, they merely need to acknowledge that another state did so," Cooley said. "That's totally different."
Cooley also wants the Supreme Court judges to go beyond allowing his client to get divorced in Missouri and consider declaring the ban on same-sex marriage to be unconstitutional.
"To the extent that this court deems that DOMA (Defense of Marriage Act) prevents the dissolution of a same-sex marriage entered into elsewhere," Cooley said, "then we would argue that Missouri DOMA is unconstitutional, under procedural due process, substantive due process, and equal protection."
Missouri Attorney General Chris Koster is not contesting the plaintiff's case. A ruling is expected later.
On Nov. 5, St. Louis city Circuit Judge Rex Burlison ruled that Missouri's ban on same-sex marriage was unconstitutional, prompting numerous same-sex couples to head to city hall that day and get married. Two days later, U.S. Circuit Judge Ortie Smith in Kansas City also declared Missouri's gay marriage ban unconstitutional. Koster, who supports same-sex marriage, has appealed both rulings, saying he's obligated to defend Missouri's laws in court. But he chose not to seek a stay of Burlison's decision, effectively allowing marriage licenses to be issued to same-sex couples.
Smith, however, issued a stay of his own ruling after Koster's appeal to the federal 8th Circuit Court of Appeals. Attorneys say the federal stay has no legal impact on the state ruling. But some advocates say that in some counties recorders of deeds who don't believe Burlison's ruling applies statewide could use the federal stay as cover.
St. Louis Public Radio's Chris McDaniel contributed to this report.
Follow Marshall Griffin on Twitter: @MarshallGReport
