Gracious sakes alive! A judge in Columbia has granted a same-sex divorce.
How can a judge in a state with a constitution that forbids same-sex marriage do such a thing?
Well, she did. And the action lays the groundwork for another challenge to Missouri’s anti-gay marriage law.
The issue already is in the court system–a challenge to Governor Nixon’s directive for the Department of Revenue to recognize joint income tax returns filed by same-sex couples whose marriages are recognized in other states and by the IRS. This wrinkle could be headed there next in case anybody wants to claim they are personally injured (not just personally offended) by a judge who says the court is only making sure two parties fairly divvy up their assets and custody of their children.
Or some aggrieved member of the Missouri House might decide the judge should be impeached. One Representative has launched an impeachment action against Governor Nixon, who says he is only following federal and state tax law with his directive to the Department of Revenue. The House Judiciary Chairman soon will decide if the House should consider impeaching Nixon before the court system has decided whether his actions are, in fact, legal. We expect to enjoy watching the Missouri House explain why it is impeaching a Governor who has done nothing illegal, should the courts rule in his favor.
In future days or weeks we undoubtedly will hear the tired old refrain about this or that “activist judge” on this issue, particularly from those who think the courts have no business dealing in such things as equity, balance, fairness, and–here’s word used in the Columbia case, comity.
“Comity” is not a word we use very much in conversations around the water cooler. But “comity” means, for example, that our Missouri drivers’ licenses will be honored in other states. Our concealed weapons permits will allow Missourians to legally carry hidden weapon in other states. Our heterosexual marriages will be considered legal anywhere. And if our heterosexual marriage in, say, Massachusetts falls apart in, say, Columbia, Missouri, we are legally entitled to get a divorce there instead of going back to Massachusetts.
But can a judge in Missouri where same-sex marriages are not recognized grant a same-sex couple a divorce?
This is where this case seems to have a broader significance.
Many of us–reporters, legislators, observers—have been caught up in the federal gun regulation nullification fights for the last couple of years. But the nullification movement already is a decade old and dates to the adoption in 2004 of the anti-same-sex marriage amendment to the Missouri Constitution. That was when Missouri voters adopted the provision saying Missouri wouldn’t recognize some marriages that are recognized in various ways and in various other places.
Now a judge in Columbia has established a additional grounds for more questions about that provision in Missouri’s Constitution and whether the adoption of that provision was an attempt to nullify the Equal Protection Clause of the U. S. Constitution.
A lot of people will be interested in the ways courts are challenged to nullify the nullification movement, beginning with the same-sex marriage provision in Missouri law. In the meantime, we’re planning on driving in some other states this summer and are glad those other states won’t treat our driver’s license the same way Missouri treats some Massachusetts marriage licenses.