Gay marriage issue can still go to court

Lawsuits could claim the 14th amendment is being violated.
Thursday, August 5, 2004 | 12:00 a.m. CDT; updated 11:59 p.m. CDT, Thursday, July 17, 2008

Missouri voters showed overwhelming support to ban gay marriage Tuesday, but the issue may yet face challenges in the courts. Same-sex couples in Missouri have legal recourse to challenge Amendment 2, which says “a marriage shall exist only between a man and a woman.”

MU law professor Carl Esbeck outlined several potential scenarios that could play out in the courts. If a same-sex couple tried to obtain a marriage license from the state, they would be denied. They could then argue in court that the state constitution violates the 14th amendment of the federal constitution, which guarantees equal protection of the law to all citizens.

Such a lawsuit could be brought at the circuit court level, because state judges have jurisdiction on questions of federal constitutionality. A plaintiff could also file suit in U.S. District Court.

“These issues have never been litigated to judgment,” Esbeck said.

Jeff Wunrow, deputy campaign manager for the Constitution Defense League, a visible opponent of Amendment 2, said his organization has no plans to challenge the amendment. He said the league’s legal team felt it would get no positive result from either the Missouri courts or the federal system and does not want to set a bad precedent.

In Florida — which has a state law against gay marriage but no constitutional amendment — a Miami attorney has filed lawsuits challenging the ban at both levels: five in state court and two in federal court. At least seven other states are in court defending their laws against gay marriage.

A lesbian couple in Florida has a Massachusetts marriage license and is suing to have it recognized. Esbeck said such legislation will center around the 1996 Defense of Marriage Act, a federal law that says a state need not give full faith and credit to a marriage from a sister state. A plaintiff could argue that the act is unconstitutional.

Esbeck said that regardless of the outcome in the Florida federal suits, he expects the losing side to appeal to the next level, a federal appeals court, which would be obliged to hear the case. Beyond federal appeals court is the U.S. Supreme Court, which has full discretion over the cases it chooses to hear.

“The Supreme Court could allow it, but they may not,” Esbeck said. “It’s a politically controversial matter. Sooner or later, they’ll take it up.”

He compared gay marriage to affirmative action, an issue on which the Supreme Court only recently ruled. Esbeck said the years of public deliberation helped the high court in its ruling, which struck down the use of race in the University of Michigan’s undergraduate admissions, but upheld it in the law school.

Missouri’s ballot was the first such vote since a November ruling in Massachusetts that legalized same-sex marriage. Missouri joins Alaska, Hawaii, Nebraska and Nevada as states with constitutional amendments defining marriage. Nine other states will vote on similar amendments this fall; the next will be Louisiana on Sept. 18. Three states have such initiatives pending.

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