Missouri law takes more mundane view of marriage

Tuesday, July 13, 2004

JEFFERSON CITY, Mo. -- Although the Missouri Supreme Court has never considered whether same-sex couples have the constitutional right to wed, it commented on the gender parameters of marriage in the early years of statehood.

"There must be a man and a woman," Judge Mathias McGirk, an original member of the high court, wrote in an 1835 case. "Two men cannot make it. Two women cannot -- only one man and one woman under our laws can enter into it. ..."

But that case had nothing to do with same-sex marriage. Read in their historical context, the judge's comments come across simply as a statement of the obvious.

The case, perhaps the Missouri court's earliest statement on marriage, involved the legal status of marriage as a civil contract. Missouri cases on the subject since that time also primarily have examined the issue in contractual terms.

Diane Howard, who practices family law in Cape Girardeau, says that in the legal community the status of marriage as a contract only between a man and a woman is considered settled law in Missouri, although legal standards can and do evolve.

"Laws are the rules that run society," Howard said. "As society changes, the rules can change. But under Missouri law as we now know and love it, marriage is between a man and a woman."

That long-standing view wasn't codified in Missouri until the 2001 passage of a law that specifically states that purported same-sex marriages are invalid. On Aug. 3, Missouri voters will decide whether to bolster that policy by ratifying a proposed amendment to the state constitution which states: "That to be valid and recognized in this state, a marriage shall exist only between a man and a woman."

Although many people consider marriage a sacred institution, Missouri law takes a more mundane view, defining it simply as a civil contract between consenting parties.

While Missouri requires marriages to be solemnized, that action doesn't have to be performed by a clergyman. Judges are also authorized to do so.

In fact, the sanctioning of a union by a religious organization has no bearing on the legal act of marriage.

Automatic inheritance

In 1993, the Missouri Court Appeals Western District ruled that although a couple had been wed in a religious ceremony, the union wasn't legally recognized due to the lack of a marriage license. In that case, the "husband" died a day after the ceremony but before a license could be obtained. The court denied the "widow" the right to inherit his estate.

The right to automatic inheritance is one of the many privileges -- and obligations -- state statutes grant married couples.

Carla Holste, a Jefferson City lawyer who helps advise the Missouri Bar on family law issues, cited property ownership as an example of the special privileges of spouses.

If two unmarried people hold joint title to a property, each owns only half of it. Should one owner die, his interest generally would pass to his heirs and not the co-owner. Spouses, however, are considered full owners of jointly held property.

"The law really sees married couples as one unit for the purpose of owning real estate," Holste said.

Married couples also have limited power to make medical decisions for incapacitated spouses. However, Holste says it is still wise for married couples to have a will specifying their wishes on decisions such as whether to continue life support.

"There are going to be hospitals that would be unwilling to take the spouse's say on what should or should not happen," Holste said.

Legal obligations of marriage include spouses assuming some responsibility for their partners' debt. For example, a surviving spouse would be liable for the medical expenses of a deceased spouse and any jointly held debt. However, if one spouse has solely incurred debt, creditors cannot demand repayment from the other spouse, Holste said.

Private perks

Other benefits of marriage flow not necessarily from the law but from the private sector. Companies generally offer the spouses of employees health insurance coverage and other perks.

Dr. Rick Althaus, a political science professor at Southeast Missouri State University, says the increasing willingness of major corporations to extend such benefits to employees' same-sex partners could be a precursor to legal recognition of same-sex unions.

"If corporate policies are more and more treating same-sex couples comparably to the way they treat heterosexual couples, people may eventually wonder what the fuss was all about," Althaus said.


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