PHOTO: Graphic courtesy of Eric Wynen for The Current ©

By Daniel C. Hodges, staff writer for The Current

On November 7, Ortrie D. Smith, Senior Federal Judge in Kansas City, declared that Missouri’s ban on same-sex marriage violated the United States Constitution. The decision is stayed pending appeal, meaning that while the appeal is being processed, the ban on same-sex marriages will remain.

The challenge to Missouri’s ban on same-sex marriage was brought by the American Civil Liberties Union of Missouri on behalf of two Jackson County same-sex couples. On November 7, Smith issued a ruling saying that Missouri’s Constitutional Amendment 2 of 2004 violated the U.S. Constitution’s 14th Amendment’s equal protection clause that says, in part, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Huffington Post also noted that, “Smith found that Missouri lacked a compelling state interest to limit marriage to one man and one woman.”

Smith stated that his ruling is pending an appeal by the Missouri Attorney General, Chris Koster, a Democrat. Koster is personally in favor of overturning the ban, but said earlier this year that “[as] Attorney General, I cannot pick and choose the portions of our constitution to uphold… While I would personally vote to repeal the ban, I have a duty to my oath and to the people of Missouri who adopted the constitutional provision.” By November 12, more than 3,000 individuals have signed a petition asking Koster not to appeal Smith’s decision.

According to the Federal Judicial Center, Judge Smith is a 1968 alumnus of the University of Missouri for his B.A. and the University of Missouri–Kansas City School of Law for his J.D. (1971). Smith was appointed as a federal judge by President Clinton and confirmed by the Republican-majority Senate in August 1995.

In August 2004, Missouri passed an amendment to its Constitution saying, “That to be valid and recognized in this state, a marriage shall exist only between a man and a woman.” The referendum passed with 71 percent in favor and 29 percent opposed. The city of St. Louis was the lone exception in a state where every county voted in favor of the amendment. Missouri was the first state to pass a restriction on same-sex marriage after Massachusetts began allowing the practice in May 2004.

In June 2013, the Supreme Court declared in United States v. Windsor that Section 3 of the Defense of Marriage Act was unconstitutional under the Due Process Clause of the Fifth Amendment to the U.S. Constitution. This resulted with same-sex marriage bans being overturned in several states, yet put on hold pending appeals to the Supreme Court. When the Supreme Court opted not to hear those appeals in October 2014, it opened the floodgates to the legalization of same-sex marriage in many states, Missouri included.


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