High court hears gay marriage amendment dispute

JEFFERSON CITY, Mo. -- The Missouri Supreme Court barraged attorneys for two of the state's top elected officials with questions Tuesday in considering whether a proposed constitutional ban on same-sex marriages should go on the statewide ballot in August or November.

Attorney General Jay Nixon is asking the court to compel Secretary of State Matt Blunt to put the issue on the Aug. 3 party primary ballot as ordered by Gov. Bob Holden. If the high court refuses to do so, voters will decide the matter during the Nov. 2 general elections.

The case has significant political implications as the same-sex marriage issue is expected to spark strong turnout among socially conservative voters. If decided in November, it could give Republicans an edge in what are expected to be close contests for president and governor and also influence the outcomes in races for other statewide offices and the Missouri Legislature.

Cole County Circuit Judge Richard Callahan declined to order Blunt to clear the measure for the earlier election. The Missouri Court of Appeals Western District in Kansas City affirmed Callahan's decision.

The Supreme Court is expected rule quickly so local election officials can finalize ballots for the August primaries.

The legislature gave final approval to the proposed amendment on May 14. The measure states: "That to be valid and recognized in this state, a marriage shall exist only between a man and a woman."

By default, proposed amendments go on the ballot at the next general election. However, the Missouri Constitution gives the governor the option of calling an earlier election.

Governor's proclamationHolden, a Democrat seeking re-election, on May 19 issued a proclamation ordering an August vote on the issue. However, Blunt, the presumed GOP nominee for governor, claimed he was unable to comply because the top leaders in each legislative chamber hadn't yet formally certified that the measure had been approved. House Speaker Catherine Hanaway, R-Warson Woods, and Senate President Pro Tem Peter Kinder, R-Cape Girardeau, finally forwarded the proposal to Blunt on Friday -- three days after the May 25 deadline for placing an issue on the August ballot had passed.

Terry Jarrett, Blunt's attorney, told the court Blunt had no legal authority to set the election before receiving the official copy of the proposed amendment and was legally precluded from doing so once the deadline had been missed.

Judge Richard Teitelman asked how the three-day delay would have impaired the ability of election officials to prepare for an August vote. Jarrett said the deadline can't simply be ignored.

"Once that passes, the secretary doesn't have the authority to send notice for an August election," Jarrett said. "The fact that it could have been done a few days after that is irrelevant."

Assistant attorney general Paul Wilson argued the constitution gives the governor the power to set elections on a proposed amendment once it has been approved by both chambers and the votes recorded in the House and Senate journals -- actions that occurred well before the deadline.

"The secretary of state has a lot of excuses for why he hasn't done what the law requires him to do," Wilson said. "But all the excuses he offers are of his own making."

If the court accepts Blunt's interpretation, Wilson said legislative leaders could effectively strip a governor of his constitutional power to set elections on amendments.

The constitutional provision cited by Blunt that requires legislative leaders to sign bills is irrelevant, Wilson said, since proposed amendments are technically not bills but joint resolutions. Bills go to the governor to be signed into law or vetoed. Joint resolutions bypass the governor and are decided by voters.

Judge Stephen Limbaugh Jr. questioned whether the court can force Blunt to put the issue on the August ballot, citing a state law that gives the secretary of state up to 20 days to approve ballot language. By taking his time, Blunt could still have missed the ballot deadline, Limbaugh noted.

"It seems like this is irrelevant," Limbaugh said. "If he has 20 days, he has 20 days."

However, Judge William Ray Price Jr. wondered how time-consuming it could possibly be to formulate ballot language for a one-sentence amendment.

The case is State of Missouri ex rel. Jeremiah (Jay) Nixon v. Matt Blunt.

mpowers@semissourian.com

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