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Missouri Supreme Court Hears Same-Sex Divorce Case

(via Flickr/david_shane)
Credit (via Flickr/david_shane)

The Missouri Supreme Court is considering whether the state's ban on same-sex marriage also prevents gay couples in Missouri from getting divorced in Missouri courts.

A man identified only as M.S. married his male partner, identified as D.S., in Iowa in December 2012. The couple separated in August 2013, and in January of this year M.S. filed for divorce in St. Louis County. But Associate Circuit Judge John Borbonus ruled that Missouri's refusal to recognize same-sex marriages barred him from granting the couple a divorce.

Attorney Drey Cooley says the status quo places an undue burden on same-sex couples living in Missouri who decide to split up.

"They have to drive hundreds of miles to another state, absent (the Supreme) Court's intervention," Cooley said, "and not only drive and travel to another state, (but) most likely have to reside there and move there for a certain period of time until they suffice that state's residency requirements."

Cooley argued that Missouri can legally dissolve the marriage of a same-sex couple without recognizing same-sex marriage as a whole, as the state currently does with common-law marriages.

"To get a dissolution here, the court doesn't have to recognize, validate, affirm, approve, (or) acknowledge the marriage, they merely need to acknowledge that another state did so," Cooley said.  "That's totally different."

Cooley also wants the Supreme Court judges to go beyond allowing his client to get divorced in Missouri and consider declaring the ban on same-sex marriage to be unconstitutional.

"To the extent that this court deems that DOMA (Defense of Marriage Act) prevents the dissolution of a same-sex marriage entered into elsewhere," Cooley said, "then we would argue that Missouri DOMA is unconstitutional, under procedural due process, substantive due process, and equal protection."

Missouri Attorney General Chris Koster is not contesting the plaintiff's case.  A ruling is expected later.

On Nov. 5, St. Louis city Circuit Judge Rex Burlison ruled that Missouri's ban on same-sex marriage was unconstitutional, prompting numerous same-sex couples to head to city hall that day and get married.  Two days later, U.S. Circuit Judge Ortie Smith in Kansas City also declared Missouri's gay marriage ban unconstitutional.  Koster, who supports same-sex marriage, has appealed both rulings, saying he's obligated to defend Missouri's laws in court. But he chose not to seek a stay of Burlison's decision, effectively allowing marriage licenses to be issued to same-sex couples.  

Smith, however, issued a stay of his own ruling after Koster's appeal to the federal 8th Circuit Court of Appeals.  Attorneys say the federal stay has no legal impact on the state ruling.  But some advocates say that in some counties recorders of deeds who don't believe Burlison's ruling applies statewide could use the federal stay as cover.

St. Louis Public Radio's Chris McDaniel contributed to this report.

Follow Marshall Griffin on Twitter:  @MarshallGReport

Copyright 2014 St. Louis Public Radio

St. Louis Public Radio State House Reporter Marshall Griffin is a native of Mississippi and proud alumnus of Ole Miss (welcome to the SEC, Mizzou!). He has been in radio for over 20 years, starting out as a deejay. His big break in news came when the first President Bush ordered the invasion of Panama in 1989. Marshall was working the graveyard shift at a rock station, and began ripping news bulletins off an old AP teletype and reading updates between songs. From there on, his radio career turned toward news reporting and anchoring. In 1999, he became the capital bureau chief for Florida's Radio Networks, and in 2003 he became News Director at WFSU-FM/Florida Public Radio. During his time in Tallahassee he covered seven legislative sessions, Governor Jeb Bush's administration, four hurricanes, the Terri Schiavo saga, and the 2000 presidential recount. Before coming to Missouri, he enjoyed a brief stint in the Blue Ridge Mountains, reporting and anchoring for WWNC-AM in Asheville, North Carolina. Marshall lives in Jefferson City with his wife, Julie, their dogs, Max and Liberty Belle, and their cat, Honey.