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What’s Changed, What’s Next For Missouri’s Same-Sex Marriage Laws

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

Last week, a federal judge in Kansas City followed a St. Louis judge and struck down Missouri’s ban on same-sex marriage.

“As it stands right now, marriage between same-sex couples is legal in Missouri,” A.J. Bockelman, executive director of Promo, told “St. Louis on the Air” host Don Marsh on Monday. Promo is a statewide organization that advocates for equality. “We have licenses being issued in St. Louis, St. Louis County and Kansas City.”

Friday’s decision in Kansas City was actually the third recent ruling on same-sex marriage in the state.  

A 2004 Missouri Constitution amendment banned same-sex marriage, stating “That to be valid and recognized in this state, a marriage shall exist only between a man and a woman.”

In October, a Jackson County circuit court judge ruled that the state had to recognize same-sex marriages performed in other states. Judge J. Dale Youngs said not recognizing those marriages was a violation of the U.S. Constitution’s 14th Amendment guaranteeing equal protection under the law.

On Wednesday, a St. Louis circuit court judge ruled that Missouri’s ban on same-sex marriage also violates the U.S. Constitution. St. Louis and St. Louis County began issuing marriage licenses after that ruling.

Then on Friday, a federal judge in Kansas City also struck down Missouri’s ban. Judge Ortie Smith stayed his ruling pending an appeal from Attorney General Chris Koster, who has said he will appeal it. Koster has said he personally supports same-sex marriage. Jackson County officials began issuing marriage licenses Friday afternoon, but Smith’s decision and subsequent stay has caused confusion across the state.

“I’m not going to give the attorney general knocks for doing his job, however there are moments in time where we look for leadership to be exercised,” Bockelman said. Promo has created a petition asking Koster to not appeal the decision.

In similar situations, Bockelman said attorneys general in California, Illinois, Oregon and Pennsylvania declined to appeal decisions.

Bockelman drew comparisons between same-sex marriage bans and previous interracial marriage bans. In 1967, the Supreme Court heard Loving v. Virginia, a landmark civil rights case that ruled that laws prohibiting interracial marriage were unconstitutional.

“In Loving v. Virginia, Missouri was one of the states that still had interracial marriage banned on the books,” Bockelman said. “At that time, after the U.S. Supreme Court — now this was a U.S. Supreme Court decision, not necessarily just a state or circuit court decision — the attorney general at that time did issue guidance essentially declaring that ban to be struck down in the state. We’re seeing a similar wave happen throughout the country.”

If Koster does appeal Friday’s decisions, the case would go to the Court of Appeals for the 8th Circuit.

“We risk different things within the 8th circuit,” Bockelman said. “You have the 8th Circuit that has a bad history when it comes to LGBT issues. They actually upheld a ban for Nebraska. If it’s about a case getting to the U.S. Supreme Court, the 6th Circuit last week, they effectively came out with a bad decision upholding the bans in that state, likely getting us to the U.S. Supreme Court now.”

On Thursday, the Court of Appeals for the 6th Circuit ruled that bans on same-sex marriage in Michigan, Ohio, Kentucky and Tennessee were valid, and that voters had the authority to decide whether to ban marriage between a same-sex couple.

When its term started in October, the U.S. Supreme Court said it would not hear same-sex marriage cases this year. Inaction by the high court meant appeals court decisions stood, legalizing same-sex marriage in 11 states: Colorado, Indiana, Kansas, North Carolina, Oklahoma, South Carolina, Utah, Virginia, West Virginia, Wisconsin and Wyoming. Same-sex marriage already was legal in 19 states and the District of Columbia. The 6th Circuit ruling could convince the Supreme Court to hear a same-sex marriage case after all.

“I think that effectively by 2016 when this next crop of elected officials comes through, (same-sex marriage) will be settled by that point,” Bockelman said. “It is anticipated that the Supreme Court takes this up this term because (of) the 6th Circuit decision, and likely has a decision rendered by December next year.”

He also said the Supreme Court’s decision could come down to one justice.

“I think that what we’ve seen are a number of rulings where Justice (Anthony) Kennedy comes down to the deciding factor,” Bockelman said. “I think that he telegraphed a lot in that Windsor decision last year, even though he said it was up to the states.”

In Windsor v. United States, the Supreme Court held that restricting “marriage” to heterosexual couples was unconstitutional under the Fifth Amendment. “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity,” Kennedy wrote in the majority opinion.

Back in Missouri, Bockelman said he expects much of the confusion over same-sex marriage in the state to be cleared up by the end of the year.

“There’s confusion right now around what’s going on with these individual cases, but we kind of need to take up the next level and just view (them) with the longer-term issue, because this is inevitable,” he said.

Bockleman said Promo also is addressing other pressing issues.

“Right now you can still be legally fired in most of the state if you identify as gay. We know that too often lesbians are denied apartments or writing a contract on a house, and that way too often transgender individuals are completely denied access to basic services. While one avenue is moving along very quickly, other avenues are still very much behind the times.”

“St. Louis on the Air” discusses issues and concerns facing the St. Louis area. The show is produced by Mary Edwards and Alex Heuer and hosted by veteran journalist Don Marsh. Follow us on Twitter: @STLonAir.

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