Legal Loophole Could Void Illinois Same-Sex Marriages for Missouri Couples

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Missouri's constitutional ban could make same-sex marriages in Illinois a legal risk for St. Louis couples.
  • Missouri's constitutional ban could make same-sex marriages in Illinois a legal risk for St. Louis couples.

Ever since Illinois' attorney general told gay couples last week they could apply now for marriage licenses instead of waiting until June 1, things have been a little confusing.

Officials are deciding on a county-by-county basis whether their clerk's office is ready to take applications. Sometimes, the confusion is as simple as what to do for two brides when the application form asks for the name of the groom.

But even for Missouri couples who find a county that accepts marriage applications, getting married in Missouri could be a legal risk. The Illinois same-sex marriage law voids any marriages between people who live in a state, like Missouri, where the union is illegal.

See also: Same-Sex Marriage Comes Early to Illinois

St. Clair County, Illinois -- just across the Mississippi River from St. Louis -- started accepting marriage applications from gay couples on Wednesday after a court ruling last month allowed early applications in Cook County, which includes Chicago.

"We might as well get the process ready because it's coming," says St. Clair County Clerk Tom Holbrook to the St. Louis Post-Dispatch. "We think it's better to be proactive."

But the status in Madison County, also neighboring St. Louis, was shakier. The county clerk first told PROMO, a statewide LGBT advocacy group, it would allow applications immediately but later said it would wait until June 1, when the application forms and computer system would be ready.

See also: 6 Questions (And Answers) About Illinois' New Same-Sex Marriage Law

"[It] is not professional and doesn't look legal" to scratch out the "bride" or "groom" label on the form for couples with two brides or two grooms, Debra D. Ming-Mendoza, Madison County Clerk, told the Post-Dispatch.

But finding a county clerk willing to take marriage applications is only the first legal hurdle for gay couples. Illinois' marriage law prohibits marriages for gay couples from states that forbid the unions, such as Missouri, which passed a 2004 constitutional amendment banning same-sex marriage.

See how a wording discrepancy makes getting married in Illinois a legal risk on the next page. But finding a county clerk willing to take marriage applications is only the first legal hurdle for gay couples. Illinois' marriage law prohibits marriages for gay couples from states that forbid the unions, such as Missouri, which passed a 2004 constitutional amendment banning same-sex marriage.

Section 217 of the law says:

No marriage shall be contracted in this state by a party residing and intending to continue to reside in another state or jurisdiction if such marriage would be void if contracted in such other state or jurisdiction and every marriage celebrated in this state in violation of this provision shall be null and void.

Lawmakers designed the provision to stop underage couples from out-of-state getting married in Missouri, Edwardsville attorney Todd Sivia tells the St. Louis Beacon. But the provision could also affect same-sex marriage. There's just one issue: despite the constitutional amendment, gay marriage is not technically "void" in Missouri.

The Missouri constitution says:

That to be valid and recognized in this state, a marriage shall exist only between a man and a woman.

"Missouri's constitutional ban says that marriages of same-sex couples are not 'valid and recognized' rather than saying they are 'void,'" as the Illinois law says, PROMO explains on its website. "We can't be sure what the courts will ultimately say about the difference between 'void' and 'valid and recognized.' But we believe these marriage bans will be struck down in a matter of time."

See also: ACLU And Eight Gay Couples Sue Missouri Over Same-Sex Marriage Ban

Legal experts say that until courts rule or laws change, no one can give a definitive answer to how Illinois and Missouri will interpret the wording discrepancy.

Iowa, another of Missouri's neighbors and a state that allows same-sex marriage, does not have a provision "voiding" marriages like the one in Illinois.

In the end, the wording of the law may not matter. As public support moves behind same-sex marriage nationally, states with marriage bans, including California and Texas, are losing court cases.

In Missouri, eight gay couples are suing for the right to marry, saying the state's ban is unconstitutional.

Follow Lindsay Toler on Twitter at @StLouisLindsay. E-mail the author at Lindsay.Toler@RiverfrontTimes.com.

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