Judge says state law violates inmates' rights to marry

Sunday, February 9, 2014 | 5:58 p.m. CST

JEFFERSON CITY — A Missouri law that requires marriage license applications to be filled out in the presence of a county recorder of deeds or their deputy is unconstitutional when applicants are physically unable to appear because they are incarcerated, a federal judge ruled this week.

U.S. District Judge Gary Fenner handed down his seven-page ruling Thursday in response to a lawsuit filed by the ACLU of Missouri on behalf of three women who plan to marry inmates at Tipton Correctional Center later this month, the Jefferson City News Tribune reported.

Fenner's ruling in the Moniteau County case is the third by a federal judge on the issue in the past year. All three determined that people have a fundamental right to marry that is protected by the "due process clause" of the U.S. Constitution's 14th Amendment, but the cases don't cover the entire state of Missouri because each one involved a specific recorder's office.

"Their marriage ceremonies are at risk of being cancelled because of Plaintiffs' inability to obtain marriage licenses," Fenner wrote.

He said Michele A. Higgins, Moniteau County's recorder of deeds, "does not oppose Plaintiffs' request for relief," but didn't think she could issue the licenses because "she believes that she is bound by the statutory in-presence requirement and notes that any person who violates the provisions of (the law) shall be deemed guilty of a misdemeanor."

Fenner ordered Higgins to issue a license to any incarcerated person and his or her fiance' without requiring the person in prison to fill out the marriage license in front of the recorder or deputy — as long as the prison provides "reasonable written proof as to the authenticity of the signature of an applicant on a marriage license application. Reasonable verified proof of the fact that the applicant is physically unable to appear in the presence of the recorder of deeds at the time the application is completed and upon receipt of all fees and other documents required for the issuance of a marriage license."

In March, Fernando Gaitan Jr., chief judge in the federal court's Western District in Kansas City, issued a ruling in a case the ACLU filed against Cole County Recorder Larry Rademan. In June, Judge Catherine D. Perry of the St. Louis-based Eastern District made the same finding in a case against Washington County Recorder Judy Cresswell Moyers.

Bills have been filed in both the Missouri House and Senate seeking to change state law as it pertains to marriage licenses for inmates.

"The government should be in the business of encouraging and supporting committed relationship, not preventing couples from being married," Tony Rothert, legal director for the ACLU of Missouri, said in a news release.

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