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Missouri judge rules same-sex couples in St. Louis can get married

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Missouri state sealIn a new ruling a Missouri judge has ruled that the state’s same-sex marriage ban is unconstitutional. The ruling, which applies to St. Louis, upholds the June issuance of four marriage licenses to same-sex couples.

There’s no stay of the ruling. A judge had earlier ruled that Missouri must recognize same-sex marriages performed outside of the state. That decision was not appealed.

EqualityOnTrial will have more on this developing story.

UPDATE: The state has appealed the decision to the state supreme court. They won’t ask for a stay, according to the announcement.

Thanks to Equality Case Files for these filings


  • 1. andrewofca  |  November 5, 2014 at 2:35 pm

    nice! I'll take any good news I can get today…

  • 2. guitaristbl  |  November 5, 2014 at 2:52 pm

    As I said on the previous thread, AG won't seek a stay but will appeal to MO Supreme Court. Not too enthusiastic to defend that though. With Arkansas and Missouri having a good chance at getting ME through state courts, the impact of a possible decision by the 8th is lessened even more, now to just 3 states : North and South Dakota and Nebraska.

  • 3. Ragavendran  |  November 5, 2014 at 2:57 pm

    How nice is the MOSC? And is it mandatory for them to take up an appeal, or could it deny review, asking the Court of Appeals to review it instead?

  • 4. guitaristbl  |  November 5, 2014 at 3:05 pm

    MOSC ducked the issue about a year or so ago I think when a case about surviving spouse benefits (again I think) came before it (cannot find the name of the case right now) saying that the plaintiff did not challenge the ban to marriage directly. Judges (2 or 3 out of 7 I think) dissented and made it clear they would rule in favour of ME.
    The numbers are probably in our favour here : 5 judges appointed by democratic governors and 2 appointed by a republican.

    It also has to take this appeal, the MOSC only takes cases that address very specific issues. According to wikipedia :

    "Missouri voters have approved changes in the state's constitution to give the Supreme Court exclusive jurisdiction- the sole legal power to hear – five types of cases on appeal. Pursuant to Article V, Section 3 of the Missouri Constitution, these cases involve:

    The validity of a United States statute or treaty.
    The validity of a Missouri statute or constitutional provision.
    The state's revenue laws.
    Challenges to a statewide elected official's right to hold office.
    Imposition of the death penalty.
    Unless their case involves one of those five issues, people who want a trial court's decision reviewed must appeal to the Missouri Court of Appeals."

    So it goes directly there I think.

  • 5. Ragavendran  |  November 5, 2014 at 3:38 pm

    Thanks for the detailed reply. It seems the strategy to move through state courts in the Eighth is paying off. Still, it would be nice to test federal waters there soon. Come on, SD – rule on the motion to dismiss soon!

  • 6. guitaristbl  |  November 5, 2014 at 3:48 pm

    You should read, if you haven't already, how the state judge in Missouri opened some holes to Bruning used as precedent, even in federal courts. The judge in SD should take notice if she hasn't decided already.

  • 7. Ragavendran  |  November 5, 2014 at 3:59 pm

    That's good – I'm halfway through the opinion now. Glad to see the judge is using rational basis to strike down the ban!

    UPDATE: I read the part where the judge "opened holes" to using Bruning as precedent even in federal courts. Fantastic!

  • 8. Mike_Baltimore  |  November 5, 2014 at 5:06 pm

    "The validity of a United States statute or treaty."

    I think someone needs to read the US Constitution, Article VI. Whether or not a US statute is or is not Constitutional is under the jurisdiction of the Federal courts, not state courts.

    And treaties also fall under Federal jurisdiction, with a 'twist' of 2/3 of Senate membership approval thrown in.

    Would that invalidate just that section of the state constitutional amendment, or the entire amendment? Maybe it's how the entire amendment reads.

    As to the other provisions, unless there are Federal constitutional issues in individual cases, the provisions appear to be within state jurisdiction.

  • 9. ebohlman  |  November 5, 2014 at 5:21 pm

    State courts have the authority to decide Federal questions affecting parties in their state, and are bound only by superior state courts and the SCOTUS.

  • 10. Mike_Baltimore  |  November 5, 2014 at 5:47 pm

    State courts may have authority to decide, but almost all of the time, they will not accept a case that has Federal questions, but rather tell the plaintiffs that the case should be filed in Federal court. And final authority rests with SCOTUS, as ALL state highest courts can have rulings appealed to SCOTUS. Since when has SCOTUS been a state court (and of which state?), not a Federal court?

    By the way, what part of Article VI, Section 2, allows a state court to decide Federal issues? The Section in question reads "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

    I did NOT state that the highest court in a state is the final arbiter of a case, but that Federal questions are to ultimately be solved in Federal courts (which are Section III of the US Constitution), even if SCOTUS is the only Federal court involved. And since a case can ultimately end up at SCOTUS (a Federal court), most state courts will direct ANY case that involves Federal issues to a Federal court.

  • 11. worldcup26  |  November 5, 2014 at 6:57 pm

    Incorrect Mike. State courts decide federal questions every day. Plaintiffs often make both state and federal constitutional claims together and state courts rule on both. A state supreme court ruling on a state constitutional matter CANNOT be appealed to SCOTUS, as the state supreme court is the final arbiter of the state constitution. Only a federal question can be appealed from a state supreme court to SCOTUS. SCOTUS handles appeals from state supreme courts regularly; therefore, the state supreme courts regularly decide federal questions. This is basic constitutional law. I'm not sure why you are so shocked that a state court would decide a federal issue.

  • 12. FredDorner  |  November 5, 2014 at 7:49 pm

    With Prop h8 I was surprised the plaintiffs didn't make any federal claims in Strauss v. Horton, unless that was a strategy to have those federal claims made in a venue where they might have broader impact.

  • 13. GregInTN  |  November 5, 2014 at 9:02 pm

    I think it was a case of not wanting a case that could result in SCOTUS ruling against ME and setting the movement back for a long time (everybody was very conscious of the amount of time that had passed between Bowers and Lawrence).

  • 14. FredDorner  |  November 6, 2014 at 11:15 am

    That rationale doesn't make sense given that some of the very same groups which were involved in the "In re Marriage Cases" and Strauss v Horton cases also sought to intervene as plaintiffs in Perry v Schwarzenegger.

  • 15. GregInTN  |  November 6, 2014 at 12:44 pm

    I was referring to the thinking at the time of filing and arguing of Strauss v Horton. The Perry case was filed almost concurrently with the CA Supreme Court ruling in Strauss v Horton. Even at that time, many in the community were apprehensive about filing a Federal case at that point in time. However, by the time of the trial, I believe one (or more) group(s) did attempt to "jump on the bandwagon" and intervene. I believe that the plaintiffs' attorneys opposed their efforts.

  • 16. Mike_Baltimore  |  November 5, 2014 at 8:57 pm

    And when there are no Federal questions involved, SCOTUS turns down the request for cert. If there are Federal questions involved, SCOTUS might take the case, or it might not.

  • 17. Elihu_Bystander  |  November 5, 2014 at 5:12 pm

    “MOSC ducked the issue about a year or so ago I think when a case about surviving spouse benefits…”

    Here it is,

    Glossip v. Mo. DOT & Highway Patrol Emples. Ret. Sys., 411 S.W.3d 796, 805-06 and 813 (Mo. banc 2013)

  • 18. Mike_Baltimore  |  November 5, 2014 at 8:52 pm

    In the case you cited, the ONLY question was if a surviving spouse was eligible for benefits under the Highway Patrol Employees Retirement System or not. The court case could have included ME rights in MO, but it didn't. Therefore, it was properly in the state courts, not Federal, as there was no Federal law in question, only the Missouri law covering eligibility for survivor's benefits.

    IF the case involved ME, then the proper court would have been Federal, as a Federal statute (DOMA) would almost assuredly have been in question.

  • 19. JayJonson  |  November 6, 2014 at 6:04 am

    The previous MoSC case you refer to is Glossip v. Missouri Department of Transportation and Highway Patrol Employees Retirement System. More about the case and a link to the decision, including the dissents, may be found here.

  • 20. RobW303  |  November 5, 2014 at 10:55 pm

    Am I correct in assuming that the AG Chris Koster (a once-Republican turned Democrat), though formally defending the ban, is actually on the side of marriage equality, and that the appeal to the MO Supreme Court is mainly a means to make the ruling apply statewide? I know governor Jay Nixon supports ME, given his recognition order.

  • 21. MacT89  |  November 6, 2014 at 8:03 am

    Correct. That is why MO AG did not appeal the previous MO ruling allowing out-of-state marriages to be recognized.

  • 22. Zack12  |  November 6, 2014 at 11:22 am

    He is appealing but he is not requesting a stay.
    So same sex couples can get married in St. Louis while the procress plays out.

  • 23. FredDorner  |  November 6, 2014 at 11:30 am

    He has to appeal if he wants the order to apply outside of the city of St Louis, because it was the AG who brought the action against the city clerk (rather than a plaintiff being denied the right to marry). That was part of the strategy – for AG Koster's demand for relief to be denied thus allowing him to appeal.

    Meanwhile the count of St Louis has said that they'll issue licenses too.

  • 24. guitaristbl  |  November 5, 2014 at 3:06 pm

    Hinkle refused to lift the stay in Florida btw..

    "here is a substantial public interest in implementing this decision just once — in not having, as some states have had, a decision that is on-again, off-again. This is so for marriages already entered elsewhere, and it is more clearly so for new marriages. There is a substantial public interest in stable marriage laws. Indeed, there is a substantial public interest in allowing those who would enter same-sex marriages the same opportunity for due deliberation that opposite-sex couples routinely are afforded. Encouraging a rush to the marriage officiant, in an effort to get in before an appellate court enters a stay, serves the interests of nobody."

    I do not disagree with his rationale tbh but he should see the writing in the wall…Or I may just expect too much to counter yesterday's dissapointment…

    But this order essentially forces Bondi to get to the 11th circuit and get the things going there sooner than later. The clock is ticking and she has 2 months, which does sound like a long time but it all depends on Bondi's actions.

  • 25. Ragavendran  |  November 5, 2014 at 3:44 pm

    Two months? How so? She got re-elected, didn't she? And she requested and got a month's delay to file her opening brief, so it doesn't look like she would like to move fast. (If you mean two months to get a longer stay from the Eleventh Circuit, that is plenty of time – just to get a stay order.)

  • 26. guitaristbl  |  November 5, 2014 at 3:51 pm

    Given that the circuit will grant the stay if she asks of course…If the 10th circuit could deny a stay to Utah, only for Kitchen to be stayed by SCOTUS, then why wouldn't the 11th deny a stay to Florida now that SCOTUS has denied cert, basically erasing any reason to grant the stay (since virtually every court that ruled in favour of ME granted a stay based on the action by SCOTUS in Kitchen) ?

  • 27. Ragavendran  |  November 5, 2014 at 4:00 pm

    SCOTUS has never denied a stay request when an appellate court hasn't weighed in. The Eleventh may be hesitant to deny a stay request in light of this. It would be good if they deny the stay and SCOTUS is moved again – it'll be interesting to see how they respond.

  • 28. guitaristbl  |  November 5, 2014 at 4:05 pm

    Kind of uncharted territory then in light of denial of cert on October 6. We will see how it plays out. The 11th is a vastly democratic court – whether that translates to liberal in this southern AC remains to be seen.

  • 29. Mike_Baltimore  |  November 5, 2014 at 4:46 pm

    I wouldn't be at all surprised if there is one or more phone calls from the 11CA to SCOTUS, not on whether to issue a stay or not, but to get some idea of how SCOTUS would look on a stay, or at least how SCOTUS came to decide the multiple denial of requests for cert on October 6.

    Considering how opaque SCOTUS can be at times, though, I wouldn't be surprised if the 11CA doesn't call SCOTUS to get any indication of whether to stay or not.

    In other words, it's a crap shoot, IMO.

    One thing I'm fairly certain about is that SCOTUS will not bring up 'Baket' as precedent. I think the October 6 SCOTUS decisions pretty much put 'Baker' 'to bed' in terms of the case being precedent or not.

  • 30. ebohlman  |  November 5, 2014 at 5:34 pm

    The SCOTUS, like all Federal courts, doesn't willingly [1] issue advisory opinions.

    [1] Some parties have come up with tricks to get around this. The Church of $cientology has, for example, on more than one occasion effectively sued itself (by setting up subsidiary corporations and having one sue the other) in order to establish precedent on issues they expect to arise in the future.

  • 31. Ragavendran  |  November 5, 2014 at 6:27 pm

    LOL. If only that was possible… Phone calls, I mean. I think the only formal procedure that comes close to a phone call is a "certified question". And I don't know that that has ever been used.

  • 32. Ragavendran  |  November 6, 2014 at 10:55 am

    I was curious, so looked it up. According to Wikipedia, the Rule 19 certification has only been invoked five times in the past six decades:

  • 33. DrBriCA  |  November 5, 2014 at 4:08 pm

    It'll definitely be interesting to see what SCOTUS would do if the 11th CA doesn't extend the temporary stay for Florida. Do they still want district level decisions in undecided circuits to be on hold, or are they ready to let freedom ring with any favorable marriage equality ruling?

    Thomas is the justice overseeing the 11th, which makes the scenario even more interesting (and possibly lean back in favor of a stay until the CA rules).

  • 34. sfbob  |  November 5, 2014 at 8:47 pm

    If recall recorrectly, when the supervising justice grants (or refuses to grant) a stay without consultation, the party that is dissatisfied may take their claim to another justice. While it's possible Thomas would just let that happen, I suspect…well to be honest, it's hard to discern how Thomas might think in this sort of situation. He seems to have a very hydraulic view of the judicial process (mechanical, totally devoid of compassion or even common sense) so he may very well do the most obvious thing even knowing that the entire Court would eventually wind up making the final decision.

  • 35. brandall  |  November 5, 2014 at 7:14 pm

    You posted a part of the stay decision that does not show Judge Hinkle's reasoning for today's continuation of the January 5th stay order. Your quote above is from the August 21st stay which is indeed cited in today's order. Judge Hinkle's compromise (which I completely disagree with) is:

    1) For the Plaintiff's 7-day stay request: "This would leave the Eleventh Circuit insufficient time to make a considered judgment on whether the stay should remain in place and thus would be inconsistent with the public interest in implementing just once the constitutional decision on same-sex marriage in Florida. "

    2) For the Defendant's indefinite Stay Pending Appeal: "the plaintiffs have a substantial interest in exercising their constitutional rights without undue and indefinite delay. The public interest in implementing the constitutional decision just once is sufficient to support the 90-day delay so that the Eleventh Circuit can consider the matter with all deliberate speed."

    On the next page of this order: "Since October 6, no Supreme Court stay has been in effect for more than two days, and no Supreme Court stay is now in place."

    Denial of fundamental rights should trump this "stable marriage laws" argument using ""denied for want of a substantial NEW federal question." Hinkle's reasoning will now be cited for other stays in other states. The ACLU and Equality Florida should appeal his stay decision all the way to SCOTUS. We have absolutely nothing to lose at this point.

  • 36. RnL2008  |  November 5, 2014 at 3:23 pm

    Cool, some good news…….but I'll wait to add a star until it's official!!!

  • 37. guitaristbl  |  November 5, 2014 at 3:58 pm

    Kansas Supreme Court postpones hearing till the federal case is resolved, wants to hear by Nov.15 on whether it should continue to bar counties from issuing licenses, based on whether a stay is issued I guess :

  • 38. Ragavendran  |  November 5, 2014 at 4:03 pm

    Awesome. It's nice to see a state court being this cautious about the limits of its authority over federal constitutional questions. I welcome this move.

  • 39. guitaristbl  |  November 5, 2014 at 4:06 pm

    I agree. The state officials tried to cling on the hearing and decision of the state supreme court. Now that they are taking a back seat to the issue themselves, state officials cannot complicate the issue further for now – their only way forward is asking initial en banc in the 10th.

  • 40. JayJonson  |  November 6, 2014 at 6:18 am

    Can someone explain how to resolve the dilemma caused by KSC's scheduling the next briefings for November 15? As I understand it, their direction to the counties NOT to issue marriage licenses to same-sex couples will remain in effect after the November 11 stay issued by the federal judge expires. Will the county clerks have to decide whether to obey the federal judge or the Kansas Supreme Court?

  • 41. wes228  |  November 6, 2014 at 6:23 am

    The federal court order requiring clerks to issue licenses takes precedence over whatever the Kansas Supreme Court rules.

  • 42. flyerguy77  |  November 5, 2014 at 4:18 pm

    With the Nov 11th deadline Because they are appealing the decision will the Stay for good or do they ask 10th Circuit for an extended stay?

  • 43. SeattleRobin  |  November 5, 2014 at 5:48 pm

    If they want a stay beyond the 11th they'll have to ask the tenth circuit for one. It's difficult to imagine the tenth granting the request at this point. The state could ask SCOTUS for a stay pending appeal after that, but it's difficult to imagine that going their way either. (Except maybe a temp like we've seen recently while the request is referred to the full court if it's after the 11th.)

  • 44. Ryan K (a.k.a. KELL)  |  November 5, 2014 at 8:52 pm

    The 10th motions panel will deny a further stay. I know the 10CA can't "deny" the appeal per se, but can they rule in summary fashion without briefing and/or oral argument and simply rule per curium or whatever and say this is foolish, we already have precedent set here, and the district ruling is upheld. Go and and file en banc and well will vote and get back to you on that; in the mean time, no stay.

  • 45. Mike_Baltimore  |  November 5, 2014 at 5:30 pm

    It would appear marriage can only occur in St. Louis, but since MO has no residency requirements for marriage, there is no longer a 3 day wait from application to license, and residents of any state can get married in MO, it effectively opens all of Missouri (and neighboring states) to ME, as long as the marriage is in St. Louis.

  • 46. F_Young  |  November 5, 2014 at 10:31 pm

    Marriages have started:

    And since marriages are actually happening in St Louis now because there is no stay, and since any resident of Missouri (or anywhere else) can travel to St Louis to get married there, with such marriages being recognized throughout Missouri, it seems to me that Missouri should be navy blue on the Wikipedia map now.

  • 47. DACiowan  |  November 6, 2014 at 4:42 am

    The Wiki map is waiting for a state-wide ruling which hopefully comes soon.

  • 48. Elihu_Bystander  |  November 6, 2014 at 4:59 am

    It may be of interest to note, Saint Louis is an independent city. It is separate from and not part of Saint Louis County.

  • 49. Mike_Baltimore  |  November 6, 2014 at 9:13 pm

    Similar to Baltimore City is not part of Baltimore County in Maryland (the City was in Baltimore County until 1851); Carson City in Nevada; and multiple cities in Virginia (38 of them, ranging in population [in 2010] from 4,068 [Norton] to 447,021 [Virginia Beach] ).

  • 50. KACinSTL  |  November 5, 2014 at 6:28 pm

    Congratulations to the MO crew. I feel weird.

  • 51. peterplumber  |  November 5, 2014 at 6:48 pm

    Ugg. Brian Brown really pisses me off. He has posted on the NOM blog that the reason Repugnicans swept yesterday's election was because We, The People, are PO'd about marriage.

    He sure can spin a tall tale.

  • 52. sfbob  |  November 5, 2014 at 8:49 pm

    When all you've got is a hammer, everything looks like a nail. He's completely blinded by his homophobia.

  • 53. RnL2008  |  November 5, 2014 at 8:51 pm

    He and ALL the anti-gay folks have to spin the tale, but know this……the Republicans took control in 2010 and lost in 2012……..President Obama was reelected……fast forward, the Republicans gain control in 2014 and may very well lose in 2016!!!

  • 54. guitaristbl  |  November 6, 2014 at 5:26 am

    Expected that he would say that but as usual it had little to do with facts. The only 2 people I know who used the marriage issue to get votes are Tillis and Brownback and allow me to doubt if they were elected because of that or due to the high republican turn out. Everyone else either tried to downplay it (Scott) or downright supported it (The republican senate candidate in Oregon, the new Massachusetts governor etc).
    Not even the Wyoming governor pursued an appeal.

    Brown poured a lot of money into getting Tillis elected so he will try to capitalize on that as much as he can.

    It should be noted that even in this election cycle, with more conservatives out voting, polling showed a plurality, borderline majority, support for marriage equality. The same figures in 2010, when pretty much the same electorate was out voting, were vastly against equality.

    The only immediate benefits this can have for brown is it may keep the money flowing. On any other level, like the legislative one, I expect little success, even if Cruz brings the marriage amendment forward.

  • 55. Jaesun100  |  November 6, 2014 at 7:43 am

    There was like a 50,000 or so vote difference between Hagan and Tillis …..any way you slice it it was close .. Considering 2 million+ Voted….I just think a lot of Dems decided to set home Election Day…, I think a democrat was going to have a hard time in NC regardless of ME issues ….

  • 56. guitaristbl  |  November 6, 2014 at 7:46 am

    Exactly. On a presidential election day, Kagan would have kept that seat imo most probably.

    P.S. 44 % of registered voters in NC voted in this election btw ( )
    So much for the huge republican victory really…If the only way you can win is getting less than 50 % of the population on the ballot (with voting restriction laws in place as well), with a disproportionate amount of older, republican voters voting then you are in trouble, even if you have won big in this or the previous mid term…

  • 57. Jaesun100  |  November 6, 2014 at 7:59 am

    this was in Huff Post
    "Both groups, as well as younger voters, stayed home in larger numbers than in 2012 or 2008, perhaps left cold by the unpopular president and the candidates who declined to embrace him or the policies they supported only two years before. In North Carolina, for example, some 4.5 million voted in 2012, but only 2.7 million showed up Tuesday to decide the contest that Democratic Sen. Kay Hagan lost by less than 2 percentage points."

  • 58. guitaristbl  |  November 6, 2014 at 8:03 am

    Which means that if you dissect the results, you base a huge victory on low voter turnout indeed. In the last 4 national elections when turnout was high (2008, 2012) democrats had gains, when turnout was low, republicans won.

    If republicans rest assured on their victory on Tuesday and continue as they do, they are in trouble, especially when Obama gets out of the picture.

  • 59. Mike_Baltimore  |  November 5, 2014 at 9:08 pm

    Off topic:

    Seems that there are some stubborn (and bigoted?) magistrate judges in NC, citing 'religious beliefs' as the reason for not conducting ME ceremonies.

    An example cited by 'the Advocate':
    " “It was my only option,” Swain County Magistrate Judge Gilbert Breedlove told Citizen-Times. “We were directed we had to perform the marriages, and that was just something I couldn’t do because of my religious beliefs.” "
    (… )

  • 60. hopalongcassidy  |  November 6, 2014 at 6:15 am

    Fucking hypocrite bastards…I'm sure not a one of them goes out on the 'sabbath' to enforce Exodus 31:15

  • 61. Mike_Baltimore  |  November 5, 2014 at 9:19 pm

    Some additional information about Missouri ME cases, timing, prospects for opponents of ME, etc."

  • 62. Elihu_Bystander  |  November 6, 2014 at 6:32 am

    In the case of Citizens v. Bruning, Missouri Circuit Judge Rex M. Burlison gave us a wonderful gift yesterday. He starts out by noting that, “It is well-settled that Missouri courts are not bound by Eighth Circuit decisions such as Citizens.” He could have stopped right there.

    But he didn't; he went on to logically show how Citizens was dissimilar to the case at hand, State of Missouri v. Florida. So, even if the Eight Circuit president were binding on Missouri courts it would not apply because the cases were not similar. As noted above in this thread, he did this in a very understanding and elegant manner.

    Thank you Judge Burlison.

    The ruling gives real meaning to the state’s motto: Salus populi suprema lex esto = Let the welfare of the people be the supreme law.

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