A federal judge in Kansas City struck down on Friday Missouri’s 2004 constitutional amendment excluding gay and lesbian couples from marriage, marking the third victory for same-sex marriage advocates in the state within five weeks.
In his ruling, U.S. District Court Judge Ortrie D. Smith said any provision of state law that precludes people from marrying solely because they are of the same gender violates the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution.
But, as in a similar ruling from a St. Louis judge on Wednesday favoring same-sex marriage in Missouri, Missouri Attorney General Chris Koster is appealing the decision. And Smith ended his 18-page order with this: “The effects of the judgment will be stayed until the judgment is final.”
With Koster’s action, the next step is the Eighth Circuit Court of Appeals.
Despite the stay, Jackson County officials began issuing marriage licenses Friday afternoon.
“Courts are ruling that marriage is a fundamental right of every citizen,” said Jackson County Executive Mike Sanders. “Given that marriage is such an important right, sound public policy dictates that right be applied uniformly across the state.”
Smith’s ruling came after a lawsuit was filed June 24 by the American Civil Liberties Union of Missouri on behalf of two couples denied marriage licenses earlier this year.
“Sharing this news will be almost as exciting as when we got engaged” a year ago, said Angela Curtis, who has been waiting to marry Shannon McGinty until they could do so in Missouri. The women, from St. Louis, are plaintiffs in the case along with Kyle Lawson and Evan Dahlgren, of Kansas City.
“It was important to us to wait for full marriage equality where we could celebrate with all of our family and friends in the state where we live,” McGinty said. The women have been a couple for 11 years.
The ruling comes two days after St. Louis Circuit Judge Rex Burlison said that “any same sex couple that satisfies all the requirements for marriage under Missouri law, other than being of different sexes, is legally entitled to a marriage license.”
While Koster appealed that ruling to the Missouri Supreme Court, he did not ask for a stay, and couples began getting married at St. Louis City Hall almost immediately. St. Louis County also has begun issuing licenses.
Both recorders of deeds offices continued doing so on Friday. St. Louis Mayor Francis Slay said the Kansas City ruling has no bearing on Burlison’s order, and marriage licenses for all Missourians will continue to be offered at City Hall.
“There is no doubt that marriage equality is the law of the land in the state of Missouri,” said Slay. “Judge Burlison’s ruling continues to apply throughout the state.”
But around the state, recorders of deeds are holding off until they get further legal guidance, or until the state’s highest court rules.
They say there is confusion on whether the ruling goes beyond St. Louis, and point to another part of Burlison’s order stating “the city of St. Louis has the authority to issue marriage license to any same sex couples that satisfies all the requirements for marriage under Missouri law, other than being of different sexes.”
Tony Rothert, legal director of the ACLU Missouri, said the series of victories, two of them fought by his organization, are exciting but frustrating because the appeals are delaying gay couples a fundamental right.
“Every judge in Missouri is reaching the same conclusion. It’s apparent the writing is on the wall. Marriage exclusion is unconstitutional,” Rothert said.
For those county officials resistant to begin issuing licenses, as Rothert believes Burlison’s ruling allows, “they are on clear notice that if they continue to discriminate against same-sex couples, they could be sued and will lose.
That’s a decision they are going to have to make. It can’t be disputed they can issue licenses if they want to. Nothing bad is going to happen to them if they comply.”
Rothert said he hopes to see more counties over the next few days reach that conclusion. The Recorders’ Association of Missouri urged members on Thursday to hold off on issuing licenses until an attorney offers an opinion on Burlison’s ruling.
It is a misdemeanor for recorders of deeds to deny a couple a marriage license if they are legally entitled to one.
“It shouldn’t take more litigation,” Rothert said.
Last month, a Kansas City judge ruled that the marriages of Missouri gay couples wed in states or countries where such relationships are legally recognized must be honored by their home state. Koster chose not to appeal that case.
“Our national government is founded upon principles of federalism — a system that empowers Missouri to set policy for itself, but also obligates us to honor contracts entered into in other states,” Koster said in a statement. He said Missouri should not require couples “to surrender their marriage licenses in order to live and work among us.”
The ruling by Jackson County Circuit Judge J. Dale Youngs on Oct. 3 affected more than 5,400 Missouri couples.