This week, the Missouri Supreme Court heard the first of what could be several cases that will define the scope of recognition of same-sex marriage in Missouri.
The case heard this week, M.S. v. D.S., involved a same-sex couple that married legally in Iowa in 2012, as Iowa is one of many states that now recognize full equal status to same-sex marriage. The couple resides in Missouri; nine months into the marriage, they separated and one spouse filed for divorce in St. Louis County. The trial court denied the petition for dissolution of marriage for the sole reason that by statute and constitution Missouri fails to recognize same-sex marriage. A Missouri court does not have to give full faith and credit to a marriage deemed void as against public policy, and Missouri clearly has a statutory and constitutional view that same-sex marriage is against public policy. Consequently, the trial court had nothing to dissolve because it had nothing to recognize.
On appeal, two approaches to resolving this case favorably for the couple have been suggested to the Missouri Supreme Court. First, it could narrowly decide that under the Windsor case decided by the U.S. Supreme Court, Missouri should give full faith and credit to same-sex marriages that were lawfully obtained in states that recognize and authorize same-sex marriage. In so doing, Missouri family courts could dissolve marriages the state does not approve of in the first place, which seems consistent with public policy. Second, it could take the broader approach that the entire public policy argument against same-sex marriage violates the Equal Protection Clause of the U.S. Constitution. If it does so, it would in essence find all barriers to both same-sex marriage and same-sex divorce illegal and require every county to issue marriage licenses to same-sex couples and every circuit court to grant divorces to lawfully married same-sex couples.
Given that several cases relating to the legality of same-sex marriage have been addressed directly by other circuit court cases in the City of St. Louis and in Jackson County, and both cases have been appealed to the Missouri Supreme Court, it could choose the narrow path now and use the other cases to address the larger constitutional issue. Generally, courts do not reach constitutional questions if they do not need to in order to resolve the issue before them.
It seems likely that the Court will allow the divorce to proceed; the rationale for doing so remains less clear. We will know when the Court issues its decision.
If you have questions about same-sex divorce in Missouri, contact us – we can help.