For couples happily joined in matrimony, it’s a joyous state to be in.
However, when a couple wants a divorce but is refused one, wedlock takes on a new meaning.
Remaining trapped in a marriage is happening around the country to gay couples. They get hitched in a state where such unions are legal but live in a state such as Missouri where the constitution explicitly does not recognize them. When a couple decides the relationship is no longer working, filing for divorce becomes complicated.
“Same-sex relationships also sometimes don’t work out, and the couples need the legal protections to divorce just as they need the legal protections of marriage,” said Marc Solomon, national campaign director with Freedom to Marry. “The idea that you can get married to someone and then can’t get divorced is just ridiculous. Same-sex couples need clarity in the law.”
Across the country, more states are legally recognizing same-sex marriage. But in Missouri, statewide marriage recognition remains elusive.
While the spotlight has been on a series of recent lower-court rulings in favor of same-sex marriage, the divorce case of two St. Louis men has quietly made its way to the Missouri Supreme Court first. And it has the potential to determine whether Missouri joins 35 other states in formally acknowledging gay unions.
The two men, referred to in court filings as M.S. and D.S., were married on Dec. 12, 2012, in Des Moines, Iowa. They were one of 5,900 couples who were wed in Iowa during the first 3½ years such unions were legally recognized there.
But nine months into the relationship, the couple separated. On Jan. 8, M.S. filed a petition for divorce in St. Louis County, declaring that “there is no reasonable likelihood that the marriage of the parties can be preserved” and that the marriage “is irretrievably broken.”
The petition was denied by a family court judge.
“But for Petitioner’s allegation that Petitioner and Respondent are both male, on its face, Petitioner’s petition otherwise validly states a claim for dissolution of marriage in the State of Missouri,” wrote Associate Circuit Judge John Borbonus on Feb. 3.
Attorneys with the Clayton law firm of Capes, Sokol, Goodman and Sarachan appealed to the Missouri Supreme Court on behalf of M.S. They argued in court filings that the case “is not about creating a marriage. It is not about legally recognizing a marriage.” Instead, they said, “this case is about nothing more than the circuit court’s authority to say ‘Dissolution of Marriage granted.’ ”
That same argument has been used before. Three years ago, the Wyoming Supreme Court ruled that “recognizing a valid foreign same-sex marriage for the limited purpose of entertaining a divorce proceeding does not lessen the law or policy in Wyoming against allowing the creation of same-sex marriages.” The lesbian couple, married in Canada, were granted a divorce.
A BROADER APPROACH
Drey A. Cooley, one of the attorneys for M.S., argued before the state high court this month. He said the 10-year-old constitutional ban should be struck down because it violates the equal protection and due process clauses of the 14th amendment of the U.S. Constitution, an argument that has been successfully used across the country.
But Cooley suggested to the judges that it was not necessary that they go that far.
“It doesn’t have to affirm or validate the marriage, only recognize that another state has,” Cooley said in an interview. “But our hope is the court seizes on the opportunity to take the broader approach.”
The Missouri Supreme Court heard arguments in the case this month and is expected to rule in a matter of weeks.
Camilla Taylor, the marriage project director at Lambda Legal, said the court had the option of rendering a narrower ruling. Such a decision would allow the St. Louis couple a divorce, while leaving the larger question of marriage equality to be decided by the U.S. Supreme Court, where resolution is expected on other cases by summer.
“The state high court could find that it’s enough that the couple must be given an order freeing them of any continuing legal obligation to each other. They’ll get a dissolution and the court won’t even reach the decision on whether the marriage ban is constitutional,” Taylor said.
For M.S. and D.S., going back to Iowa to get a divorce is not a viable option.
In Iowa, like many states, a residency requirement is a condition of divorce. In the case of the St. Louis men, one of them would have to live in Iowa for at least a year before being able to file for a divorce.
But in other states, such as Illinois, where county clerks began issuing licenses in June, those married there can get divorced there, no matter where they live.
“People don’t decide where they are going to get married based on what the divorce laws looks like,” Taylor said. “That’s not really romantic.”
Nevertheless, Lambda Legal has been working with states crafting same-sex marriage legislation so there is recourse if the relationship does not work out.
“Divorce is one of the rights of marriage,” Taylor said.
It might seem that the couple’s ability to get a divorce would be easier after a string of rulings in favor of same-sex marriage. But that’s not necessarily the case, their attorneys and others say.
None of the three Missouri rulings resulted in overturning the state’s constitutional ban on same-sex marriage.
The first was an Oct. 3 ruling by a Kansas City judge who said that marriages of Missouri gay couples wed in states or countries where such relationships are legally recognized must be honored by their home state.
On its face, that decision would seem to pave the way for the St. Louis couple’s divorce. After all, if their marriage in Iowa is now to be recognized in Missouri, then a divorce should be granted.
Not necessarily so, said Cooley. For starters, the ruling came after the St. Louis divorce case had already been appealed to the Missouri Supreme Court. And there is still debate on how broad that ruling is, with some arguing it does not go beyond Jackson County.
Meanwhile, Cooley added, the two other Missouri rulings in favor of same-sex marriage are on appeal.
In the first case, a St. Louis judge ruled on Nov. 5 that same-sex couples are entitled to a marriage license. Missouri Attorney General Chris Koster appealed the case to the Missouri Supreme Court but did not ask for a stay, prompting the city recorder of deeds office to begin issuing licenses, with 126 as of Friday. St. Louis County has issued 80. But other counties are holding off until the case is appealed.
In the second case, a federal judge in Kansas City also ruled in favor of same-sex marriage, but issued a stay, pending appeals. Jackson County ignored the stay and began issuing licenses — 130 so far. The case is now awaiting a hearing before the Eighth Circuit Court of Appeals.