We are continuing our discussion of a divorce case, a divorce case quite unusual for Missouri. A state court recently granted a divorce to a same-sex couple, even though same-sex marriage is prohibited in the state. When we left off, we were talking about comity, the legal principle on which the judge based her opinion.
Without reading the full decision, we cannot say how the judge argued the point. But it may tie to Missouri law’s definition of marriage as a civil contract. That contract may have been struck in another state, but now that the parties want to end the contract, Missouri courts can help them out. The court can recognize the marriage “for the limited purpose of granting equitable relief.”
The judge further argued that Missouri courts have weighed in on other marriages that the state considered invalid. One case, for example, involved the marriage of a couple that had failed to obtain a marriage license.
It’s important to note that this decision does not change the Missouri Defense of Marriage Act. Same-sex couples cannot enter into a valid marriage in this state because the court granted this couple a divorce.
One last thing: Comity and “full faith and credit” go hand-in-hand in American jurisprudence. In the broadest sense, the Constitution guarantees that each state will recognize, accept and enforce the laws (especially court decisions) of the other states. Each state gives “full faith and credit” to the laws of the other states.
For the couple in this case, that means the divorce is recognized as a divorce in every other state. If one woman moves back to Massachusetts, she cannot ask the court there for a divorce and she cannot hold herself out as a married person.
We mention this because we came across a story by Mid-Missouri Public Radio that raised some questions about the U.S. Supreme Court decision in U.S. v. Windsor. The court ruled that the definition of marriage in the federal Defense of Marriage Act was unconstitutional. In the public radio story, though, one legal scholar pointed out that DOMA also has a provision that exempts same-sex marriage from the Full Faith and Credit Clause of the Constitution. The court did not address that provision, and the scholar wondered how that exclusion would play out in cases like this one.
Source: KBIA – Mid-Missouri Public Radio, “What DOMA means for Missouri,” Ryan Famuliner, Rachel Lippmann, Jacob McCleland and Jennifer Davidson, June 26, 2013Columbia Tribune, “Boone County judge grants gay couple a divorce,” Andrew Denney, May 4, 2014