Friday, November 7, 2014

Counties Outside St. Louis Area Denying Couples Same-Sex Marriage Licenses

Posted By on Fri, Nov 7, 2014 at 8:00 AM

Kelley Harris and Kelly Barnard tied the knot on Wednesday night at the St. Louis Recorder's Office. - DANNY WICENTOWSKI
  • Danny Wicentowski
  • Kelley Harris and Kelly Barnard tied the knot on Wednesday night at the St. Louis Recorder's Office.

Update 2 p.m.: Jackson County began issuing same-sex licenses today. More information at the bottom of this post.

Late Wednesday afternoon, St. Louis Circuit Judge Rex Burlison declared Missouri's same-sex marriage ban unconstitutional, and almost immediately local couples hurried down to city hall to get hitched. But one question arose almost immediately: Does the order apply to all of Missouri, or just the city of St. Louis?

Sherry Mariea, an attorney for the Recorders' Association of Missouri, read Burlison's judgment and order, then emailed all of the organization's members with her answer: The decision only pertains to the St. Louis' recorder, and no one else in the state should be issuing same-sex marriage licenses. So far only St. Louis County is going against her advice.

"There was no mention of the ruling enjoining the state of Missouri," Mariea told Daily RFT. "Therefore, I do believe it applies only to the city."

But other lawyers, including Mike Bridges, who represents one of the four couples who married at St. Louis City Hall in June, disagrees.

"I think that it's pretty clear that it applies to the rest of the state," he said. "The plaintiff in the case was the State of Missouri, and this judgment provided so-called injunctive relief which prohibits the State of Missouri from taking a contrary position."

See also: Photos: First Same-Sex Couples Wed in St. Louis City Hall Following Judge's Ruling

Mariea declined to share a copy of the email she sent out to the state's recorders, however St. Louis City Recorder Jennifer Florida read it to Daily RFT over the phone during an interview. It reads, in part:

Dear RAM members,

As many of you are aware, a ruling has been handed down in the case of State of Missouri versus Jennifer Florida...The central issue in the case is whether provisions of the Missouri Constitution and statues which prevent same-sex marriage are constitutional under the 14th Amendment of the United States Constitution. The judge in the case determined that Missouri's prohibitions against same-sex marriage are unconstitutional. However, as you can see from the final page of the judgment, the judge was very careful in the ruling to declare only the recorder of deeds in the city of St. Louis has the authority to issue marriage licenses to any same-sex couples. In fact, the judgment omits any specific directive to the state of Missouri...as a result, as of right now, the ruling only applies to the recorder of deeds in the city of St. Louis. The State of Missouri has filed its notice of appeal in the case, therefore we will receive a higher order...recorders of deeds in all other municipalities are not directed and not authorized to issue marriage licenses to same sex couples.

Mariea said her opinion has nothing to do with politics or an opposition to LGBT rights.

"This is not a policy-making organization," she said of the Recorders' Association of Missouri. "Recorders would welcome a ruling that allows us to establish statewide consistency."

Mariea points to the final line of Judge Burlison's order, which reads, "The Court FINDS and DECLARES that Defendant and any future Recorder of Deeds and Vital Records Registrar of the City of St. Louis has the authority to issue marriage licenses to any same sex couple that satisfies all the requirements for marriage under Missouri law, other than being of different sexes."

That interpretation doesn't add up for Michael Wolff, dean of the St. Louis University School of Law and a former chief justice of the Missouri Supreme Court. He pointed to earlier parts of the order which declare Missouri's marriage ban to be unconstitutional and invalid.

"Obviously the judgment is confined to the parties, and the party that he's saying is involved here is the recorder of deeds -- the person who was sued by the State of Missouri," he said. "That's the specific recorder of deeds who's involved in the case. But the declaration that the law is unconstitutional is a broad declaration."

He added, "Judge Burlison is not just a judge of the city of St. Louis. He is a judge of the state of Missouri. His jurisdiction is, of course, statewide. The state of Missouri is a party, and presumably the state is bound by that decision, unless and until a higher court vacates it."

The scene Thursday morning in the St. Louis County's recorder's office, the only county to issue same-sex marriage licenses so far.

A spokeswoman for Attorney General Chris Koster -- who announced on Wednesday that he is appealing Burlison's decision but will not attempt to stop marriage licenses from being issued in the interim -- released a statement, saying only: "As a matter of legal precedent, the decision is binding on the parties before the court."

Here is Wolff's interpretation of the Koster statement, which he sent via email: "The state of Missouri is a party and therefore is bound by the declaratory judgment that the statute and MO Constitutional provision violate the US Constitution. The Recorders issue marriage licenses on behalf of the state and, as officials of the state, are bound by the circuit court's decision that is binding on the state of Missouri."

Wolff and Bridges also warned that recorders are required to issue licenses if they are lawful or else face prosecution themselves: Failing to issue a legal marriage license is a misdemeanor. Jan Jones, recorder for Johnson County and president of the Recorders' Association of Missouri, told Daily RFT that the option to go to criminal or civil court is certainly open to couples.

"If that comes to be and someone challenges us, by all means, they should feel free to get themselves an attorney," she said. "We'll go to court and determine what's right and what's wrong."

Meanwhile, St. Louis' recorder Florida said she doesn't understand why recorders around the state are listening to the association's lawyer as opposed to counsel for their individual counties.

"It's interesting that the recorders' association attorney is going to interpret law and direct the counties' responsibilities regarding issuing marriage licenses," she said. "I'm taking advice from my own legal counsel."

Bettie Johnson, recorder of deeds for Boone County, said she did ask her county's attorney and that Boone County has no plans to issue same-sex licenses.

"My county counselor has given me legal direction in addition to the association, that it only applies to the city of St. Louis," she told Daily RFT.

But, Johnson pointed out, anyone can head over to St. Louis for the license.

"It's good anyplace in the state."

Update: A U.S. District Court Judge in Kansas City also declared the state's marriage amendment to be unconstitutional in a separate case against the Jackson County's recorder of deeds. In response, the county began issuing marriage licenses today at 2 p.m. Here is their statement:

Same-sex marriage licenses to be issued in Jackson County

November 7, 2014 (KANSAS CITY, MO) -- Based on the ruling from the U.S. District Court of Western Missouri, the Jackson County Recorder of Deeds will begin issuing same-sex marriage licenses.

Beginning at 2 p.m. today, licenses will be issued at both the Jackson County Courthouse in Kansas City and the Truman Courthouse in Independence.

"Courts are ruling that marriage is a fundamental right of every citizen," said Jackson County Executive Mike Sanders. "Given that marriage is such an important right, sound public policy dictates that right be applied uniformly across the state."

"Marriage affords couples important legal protections, ranging from family leave, the ability to care for or visit a sick spouse, the opportunity to secure inheritances, or file for joint insurance," said County Executive Sanders. " I am pleased that our staff is working expeditiously to accommodate applicants."

Given the historic nature of this decision, retired Judge Vernon E. Scoville will be available to perform marriage ceremonies starting at 2 p.m. today. These ceremonies will be conducted in the Legislative Chambers of the Jackson County Courthouse in Kansas City.

Click here to read more about the federal judge's order: Federal Judge Strikes Down Missouri's Same-Sex Marriage Ban, Attorney General Appealing

Read Burlison's order below:

Same sex marriage St. Louis order by Jessica Lussenhop

Email the author at Jessica.Lussenhop@RiverfrontTimes.com.

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