We discussed last week the decision now pending before the Missouri Supreme Court with regard to granting a divorce to a same sex couple lawfully married in a state that recognizes same sex marriage. In this post, we explore a somewhat similar case from Ohio.
Brenda Mohney and Erin O’Leary, a same sex couple, lawfully wed in 2008 in California. The couple subsequently resided in Ohio. Ohio, like Missouri, has both a statutory and constitutional prohibition on same sex marriage. Mohney filed for divorce in July of this year in Athens County; her spouse never appeared in court. On November 25, 2014, the court granted the petition for dissolution of marriage. However, several weeks later, when the court realized that the parties were a same sex couple, the court vacated its previous judgment, ruling that because Ohio does not recognize same sex marriage, it would be against public policy to recognize the lawful marriage of the parties in California by granting a dissolution of marriage.
This case has an additional twist: Ohio is in the Sixth Circuit of the U.S. Court of Appeals, and the Sixth Circuit recently became the only federal circuit court to find that a state that does not recognize same sex marriage does not have to extend full faith and credit to such a marriage even if lawfully entered into in another state. It seems likely that the U.S. Supreme Court will agree to hear this case from the Sixth Circuit, as it conflicts with all other federal circuit courts and appears also to conflict with the holding of the U.S. Supreme Court in U.S. v. Windsor.
The fact that Ohio has taken an oppositional stance to recognizing same sex marriages lawfully entered into in other states could pose some problems or shelter for the Missouri Supreme Court as it considers whether to follow a similar path. With the Ohio case, Missouri would not find itself completely alone in failing to recognize same sex marriages at least for the purpose of granting a same sex divorce. If, as seems likely, the U.S. Supreme Court accepts the Sixth Circuit case, the Missouri Supreme Court may choose to wait on issuing a decision in the recent M.S. case until after the U.S. Supreme Court rules – which means instead of having a decision in two months in M.S. we might have to wait well over a year.
If you have questions about same sex divorce, contact us – we can help.