Can gay couples from Missouri marry in Illinois? Maybe, maybe not
This article first appeared in the St. Louis Beacon - The approval of same-sex marriage in Illinois Tuesday has some gay couples in Missouri already planning a June wedding across the river. But don’t book that venue just yet. Legal minds and advocacy groups are debating whether Missouri couples will be allowed to tie the knot next door.
On Tuesday, the Illinois General Assembly approved SB 10, a bill legalizing marriage between two men or two women beginning June 1, 2014. Immediately, organizations including Equality Illinois announced in a fact sheet that same-sex couples living in all other states -- including Missouri -- could also marry there.
Not so fast, pointed out Edwardsville attorney Todd Sivia. Section 217 of the existing Illinois marriage law prohibits any union that would be void in the couple's home state, in these words:
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.
Missouri is such a state, according to Sivia, because of the constitutional amendment banning same-sex marriage passed by voters in 2004, which reads: "That to be valid and recognized in this state, a marriage shall exist only between a man and a woman."
The original intent of section 217 of the Illinois law did not anticipate same-sex marriage. It was enacted to address issues including varying ages of consent in different states, Sivia said.
"The basis of the law was to prevent underage individuals from marrying," Sivia said.
Yes, no, maybe so
When presented with this information about Section 217 of the Illinois marriage law, an Equality Illinois representative said the organization still stands by its statement that any couple from any state can marry in Illinois.
But a spokesperson from Lamba Legal, an organization dedicated to the LGBT legal rights, wrote in an email that the issue is unclear. Anthony Rothert, legal director of the American Civil Liberties Union agreed, and emailed a statement acknowledging the matter is up in the air.
“I anticipate that there will be some guidance from Illinois officials interpreting this law in the coming months. But, for now, I do not think anyone can give a definitive answer,” Rothert wrote.
Washington University law professor Susan Appleton wrote in an email that Massachusetts, the first state to offer same-sex marriage, also had an existing marriage law with a provision in line with Illinois’ 217, when its same-sex marriage law took effect. But that portion of the Massachusetts law has since been eliminated.
The Equal Protection clause of the 14th amendment to the U.S. Constitution could be used as a basis to try to repeal the Illinois statute prohibiting marriages that would be void in the couple’s home state, Appleton suggested.
What is beyond dispute is that any marriage between two men and two women will not be recognized by the state of Missouri because of the 2004 marriage amendment.
Same-sex couples living in Missouri can continue to marry in Iowa, which has no law similar to that of Illinois, even though the marriage will still not be acknowledged when they return home.
The confusion underscores the second-class status of Missouri's LGBT citizens, according to Jeffrey Mittman, executive director of the American Civil Liberties Union of Missouri. Mittman said red tape and legal maneuvering provide a mocking contrast to what should be a magic succession of events.
"When two people fall in love, it should be 'love, marriage and family,' but it's 'love, talk to a lawyer and read the statutes,'" Mittman said.
Bottom line? "Missouri needs to enact marriage equality so that lesbians and gays can create families and have the legal protections they deserve," Mittman said.