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Missouri governor announces support for marriage equality

Marriage equality

Missouri state sealYesterday, Missouri’s Democratic governor, Jay Nixon, announced that he supports marriage equality and that he would instruct state officials to allow same-sex couples with out-of-state marriages to filed combined state tax return.  The Columbia Tribune reports:

In an executive order, Nixon directed the Department of Revenue to accept the combined returns as a reaction to the June ruling from the U.S. Supreme Court striking down the federal Defense of Marriage Act. That law barred same sex couples who were legally married from receiving any marriage-based federal benefits, such as tax exemptions and Social Security payments.

Under state law, couples who file a joint federal return are required to file a combined state tax return. The executive order clarifies that the law applies to all couples, Nixon said.

Nixon’s executive order does not change the fact the Missouri Constitution bans marriage equality–a provision approved by 71 percent of voters in 2004.  But Nixon noted that he hopes the state may revisit the issue sometime soon:

“Many Missourians, including myself, are thinking about these issues of equality in new ways and reflecting on what constitutes discrimination. For me, that process has led to the belief that we shouldn’t treat folks differently because of who they are.”

Late last month, the Missouri Supreme Court rejected an appeal for survivor benefits filed by the same-sex partner of a state Highway Patrol trooper killed in the line of duty.  The trooper’s partner, Kelly Glossip, and the ACLU argued that it was unconstitutional for the state to restrict survivor benefits for same-sex couples while also refusing to allow those couples to wed.

In a 5-2 decision, the state supreme court held that it did not have to address any issue about the definition of marriage in Missouri, and chose instead to rule only the question of state can restrict benefits based on marital status.

“The only decision the Court makes here has nothing to do with the rights of same-sex partners. Instead, the Court merely upholds the General Assembly’s right to award and deny survivor benefits based on whether the claimant was married to the patrolman at the time of death.”


  • 1. Lymis  |  November 15, 2013 at 8:09 am

    I'm seeing a lot of commentary in other places that all his executive order does is allow married same-sex couples to follow the law that says that people have to use their federal tax return as the basis for their state return – but that this is ALL it does. It's not really state recognition in any meaningful form, and doesn't recognize the marriage for any other purpose.

    Anyone know if that's so? If so, while this isn't a bad thing, it's hardly what people think it seems to mean.

  • 2. Dr. Z  |  November 15, 2013 at 8:22 am

    If so, it's just setting up another court case. The argument would come down to this: does Missouri recognize other OOS marriages that could not legally be performed there; and if so, what justifies carving out SSM as a separate class for a discriminatory purpose? The fact that Missouri will be recognizing OOS SSM for tax purposes and no other purpose only undermines the state's defense even further. Sue, baby, sue.

  • 3. Jesse  |  November 15, 2013 at 10:35 am

    At this rate, it looks like Section 2 of DOMA is set up to fall in the Supreme Court.

  • 4. Dr. Z  |  November 15, 2013 at 10:54 am

    This legal reasoning thus far has bypassed DOMA, but sooner or later there will be a lawsuit demanding recognition of OOS SSM and some state will try to use DOMA Sect 2 as a defense of nonrecognition. Good luck with that.

  • 5. Ann_S  |  November 15, 2013 at 12:08 pm

    Section 2 is not actually needed for nonrecognition. A state can refuse to recognize an out-of-state marriage that violates the public policy of the non-recognizing state. This is why my parents' marriage was legal or not legal, depending on what state we lived in, right up until Loving v. Virginia.

  • 6. Dr. Z  |  November 15, 2013 at 2:41 pm

    Not sure the courts would let states get away with doing that today, precisely because of Loving.

  • 7. Ann_S  |  November 15, 2013 at 2:50 pm

    I don't believe Loving changed the prior jurisprudence regarding comity.

  • 8. Lymis  |  November 16, 2013 at 6:13 am

    They're allowing it now. The Supreme Court certainly could have dealt with that as part of Windsor if they chose to.

    Wisconsin actually criminalizes going out of state to get married if the marriage is invalid in Wisconsin – it's the exact situation that the Lovings were in in Virginia. I don't think it's being enforced, but it's on the books.

  • 9. ebohlman  |  November 15, 2013 at 3:03 pm

    The issue arises when a state refuses to recognize some, but not all, out-of-state marriages that it wouldn't perform itself. If it only recognizes out-of-state marriages that could have been performed in-state, period, then the public policy exception holds. But some states single out same-sex marriages from out-of-state for non-recognition, while recognizing all or almost all other out-of-state marriages. That's where an equal protection (as opposed to full faith and credit) issue arises.

  • 10. Ann_S  |  November 15, 2013 at 3:33 pm

    I don't think it's that simple, but perhaps you know this area of the law better. States have historically varied a great deal in reasons for denying recognition for out-of-state marriages besides same-sex marriages — closeness of relation, race, mental capacity, age, common law marriages, remarriage following divorce, etc. I'm not aware that the equal protection clause has successfully been used with respect to any of those differences in public policy reasons for non-recognition.

    Edited to add: If Section 2 were to be invalidated in equal protection grounds, then that could certainly change things.

  • 11. Dr. Z  |  November 15, 2013 at 3:49 pm

    I'm not a lawyer, but I did read the advisory opinion of the Oregon deputy AG that led to recognition. The distinction between the examples you cite (closeness of relations etc) and SSM is that the latter impermissably singles out a class of persons. According to the DAG that's what made it an equal protection violation.

  • 12. Ann_S  |  November 15, 2013 at 3:56 pm

    That is a good point — reading the advisory opinion now.

    Edited to add: This is a very interesting law review article (if a bit dated — it's from 2005) on comity and marriage equality:

  • 13. bythesea  |  November 18, 2013 at 7:33 pm

    Why was this comment downvoted at all?

  • 14. SoCal_Dave  |  November 15, 2013 at 10:16 am

    It is just one thing, but I think it's still a pretty big deal. It changes the state from having zero recognition of same-sex marriage to having *some*. I think that opens the door, to court cases as Dr.Z notes, but also just to getting people used to the idea that same-sex marriage exists, and it exists in their state. The toothpaste is out of the tube and can't be put back in.

  • 15. Dr. Z  |  November 15, 2013 at 10:56 am

    It becomes difficult at that point to claim that society will be harmed by in state SSM If they're already recognizing OOS SSM.

  • 16. Seth From Maryland  |  November 15, 2013 at 8:15 am


    If you've been following recent reports on American right-wingers Scott Lively and Brian Brown, you may recall that they both recently traveled to Russia to attend a meeting of a virulently anti-gay group called the World Congress of Families, which is planning a Moscow Summit in 2014.

    KirkWell, the group had recently planned a meeting in D.C. and had reserved a meeting room at the Dirksen Senate Office building, until it was shut down by Senator Mark Kirk (R-IL), Buzzfeed reports:

    “Shame on you, Senator Kirk, for allowing vocal radical sexual minorities to drown out the voices of the natural family and faith that have made our nation free, prosperous, and stable for more than 200 years,” said Larry Jacobs, managing director of the World Congress of Families in an email to BuzzFeed. “Obviously Senator Kirk doesn’t care about families and children and freedom and has chosen to side with the policies of decline, death and disease promoted by the Sexual Radicals.”

    A spokesman for Kirk, Lance Trover, told BuzzFeed on Thursday night, “Sen. Kirk doesn’t affiliate with groups that discriminate.”

    The meeting planned in D.C. was billed in a WCF press release as a discussion of “what can our pro-family legislators learn — positively and negatively — by studying our colleagues’ actions abroad" according to Buzzfeed.

  • 17. MightyAcorn  |  November 15, 2013 at 8:49 am

    Apparently they've moved it to a House-run office instead:

  • 18. Bruno71  |  November 15, 2013 at 11:35 am

    Someone needs to just outright ask Boehner if he hates gay people. He'll probably be offended, say no, talk about the free speech of this hate group or what have you, but the question needs to be posed, and he needs to answer.

  • 19. davep  |  November 15, 2013 at 9:41 am

    Just heard some news about the Pennsylvania SSM case that includes some really promising information. Two attempts to block the suit from going forward have just been overturned by U.S> District Judge John E. Jones. One of those attempts by the defendants relied on the old 1972 Baker v. Nelson one-sentence dismissal, attempting to argue that the current court 'lacked the power to hear the case'. Here's a quote from the article about that attempt to block the trial from proceeding. Look at what is says about the Baker ruling:

    In his ruling, Jones disagreed with what he called the defendants' predominant argument that his court lacks the power to hear the case. The defendants had cited a 1972 Supreme Court case from Minnesota that said a state law banning same-sex marriages did not violate the Constitution's equal protection and due process clauses.

    However, Jones said that decision is weakened by the Supreme Court's evolving treatment of constitutional challenges based on sex or sexual identity in the past four decades.

    "The jurisprudence of equal protection and substantive due process has undergone what can only be characterized as a sea change since 1972," Jones wrote.

  • 20. sfbob  |  November 15, 2013 at 11:17 am

    It appears we are on the verge of Baker vs Nelson being consigned to the dustbin of history. It consists of the Supreme Court's refusal to rule on the matter in a context where same-sex marriage existed no place in the world. The field has changed so completely since then that there is no longer any reason to assign any relevance to Baker whatsoever. The terms of the debate have changed for good.

  • 21. grod  |  November 15, 2013 at 1:31 pm

    Read Penn's Judge John Jones ruling in the Whitewood vs Wolf

  • 22. ebohlman  |  November 15, 2013 at 3:18 pm

    I love how Judge Jones used the state court decision against Hanes to decide in favor of letting the suit continue (in the context of the defendants' argument that the suit wasn't valid unless it named every single county clerk as a defendant).

    Jones is quite well-known for ruling in Kitzmiller v. Dover that "intelligent design theory" is actually a form of creationism and therefore can't be taught as science in public schools.

  • 23. grod  |  November 15, 2013 at 5:44 pm

    Zing: "The foregoing [citations] demonstrates significant doctrinal developments in the areas
    of due process and equal protection that eviscerate any utility or controlling effect
    that Defendants posit Baker v. Nelson may have relative to the case at bar". pg 6 ' eviscerate: 'to disembowel or remove a vital or essential part'. That's petty evocative language!

  • 24. StraightDave  |  November 15, 2013 at 6:32 pm

    The plainspoken among us would say "gutted". Same thing. SCOTUS really needs to put Baker out of its misery at the first opportunity, once and for all. The next case with solid standing should take care of that.

  • 25. grod  |  November 15, 2013 at 5:55 pm

    Law blog asks Will Pennsylvania be far behind Illinois?

  • 26. Eric Koszyk  |  November 16, 2013 at 8:22 am

    On a somewhat off topic note I like Jay Nixon a great deal. He has a crazy legislature to deal with and has vetoed some nutty laws, including a gun nullification bill that would have made it possible for state police to arrest federal law enforcement officials for enforcing federal gun laws!

    Since he's term limited out in 2016 it would seem like he would be a great VP pick.

  • 27. Mackenzie  |  November 18, 2013 at 10:35 am

    Missouri is starting to move. We are far behind on LGBTQ issues, with zero non-discrimination protections. However, last spring a non-discrimination bill passed out of the Republican dominated Senate at the last minute, and there is a small possibility that it could pass bother chambers this year. This is also setting up an attempt in 2016 to introduce a ballot question rescinding the ban. MO is behind and we move slow, but we're getting there.

  • 28. Dr. Z  |  November 18, 2013 at 7:09 pm

    We will all get there.

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