Is Gay Marriage Closer to Reality in Missouri?

On behalf of The Marks Law Firm, L.L.C. posted in Divorce and Same Sex Marriage on Thursday, February 13, 2014

As reported in the St. Louis Post-Dispatch, the ACLU filed a lawsuit in the Circuit Court of Jackson County, Missouri, seeking to chip at least partially away at the complete ban on gay marriages in Missouri.  The lawsuit seeks a declaratory judgment finding unconstitutional two state statutes and one state constitutional provision that treat same sex marriages differently than heterosexual marriage.

The lawsuit does not attack the ability of same sex couples to marry in Missouri; rather, the lawsuit attacks as discriminatory the differential treatment under color of law between legally married same sex couples (couples married in states that recognize same sex marriage) and legally married heterosexual couples.

The named parties cite the following acts of discrimination:

  • The inability to take family and medical leave, as authorized under state and federal law, to care for a spouse because that spouse is of the same sex;
  • The right to make decisions regarding health directives for a spouse because that spouse is of the same sex and, relatedly, to have hospital access akin to that of a heterosexual spouse;
  • The right to receive surviving spouse benefits as offered for state employees because that spouse is of the same sex;
  • The right to receive Social Security spousal benefits otherwise available to heterosexual spouses;
  • The right to receive spousal inheritance otherwise available to heterosexual spouses;
  • The right to adopt children without any discrimination because of status as a same sex married couple;
  • The right to have the state acknowledge the legality of their marriage so neither they nor their children feel inferior in status.

The lawsuit also delineates no fewer than twenty (20) other ways in which the law in Missouri treats same sex marriages differently and detrimentally than heterosexual marriages.

The lawsuit has a strong likelihood of success because it mirrors the relief granted by the U.S. Supreme Court last term in U.S. v. Windsor, which held that depriving a surviving same sex spouse of the tax benefits related to inheritance violates the Equal Protection Clause of the United States Constitution.  It seems unlikely that Missouri could continue to discriminate against same sex couples under current constitutional principles.

If successful, same sex couples legally married in states that recognize same sex marriage will be entitled to all of the benefits the law affords to heterosexual married couples.

Again, the law does not seek to force Missouri to allow same sex persons to marry in Missouri.  However, if successful, the lawsuit would allow same sex couples legally married in another state and who currently reside in Missouri to obtain a divorce in Missouri, where the current practice is simply to annul the marriage as void as against public policy.  So, it seems (ironically) that same sex spouses will have the right to end their marriage in Missouri before same sex partners have the right to begin their marriage in Missouri.

We will continue to update you on the status of this lawsuit as it progresses.

If you have questions about same sex marriage in Missouri, contact us – we can help.

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