Judge's decision on gay marriage amendment vote expected today

JEFFERSON CITY, Mo. -- A court will determine at what election this year Missouri voters will decide the fate of a proposed constitutional ban on same-sex marriages.

Two hours after Attorney General Jay Nixon sued Secretary of State Matt Blunt Thursday afternoon seeking a court order forcing Blunt to place the issue on the Aug. 3 ballot, Cole County Circuit Court Judge Richard Callahan held a hearing on the matter.

Callahan said he likely will issue a ruling today. Whatever his decision, the Missouri Supreme Court ultimately may be asked to decide the case.

The Missouri Legislature gave final approval to the proposed amendment May 14. By default, the issue would go on the Nov. 2 general election ballot but the governor has the constitutional option of calling for an earlier statewide vote.

On Thursday, Gov. Bob Holden, a Democrat, submitted a proclamation to Blunt placing the matter on the August ballot to coincide with the party primary elections. Blunt, the presumed Republican nominee for governor this year, responded with a letter stating that he is unable to do so because the legislature hasn't formally forwarded to the proposal to him.

Nixon, a Democrat, brought the suit on behalf of the state. Holden is not a named party.

Nixon said his legal action is about sorting out a constitutional dispute between two statewide officeholders and not the issue of same-sex marriage. Nixon said he supports the ballot proposal.

"If the governor wants to have this election in August, then so be it," Nixon said.

State Rep. Kevin Engler, the House sponsor of the proposal, said a court challenge was expected.

"I don't know what kind of games they are playing," said Engler, R-Farmington. "I don't care if it's decided at the primary or the general, just as long as it goes on the ballot."

The one-sentence amendment says: "That to be valid and recognized in this state, a marriage shall exist only between a man and a woman."

With Tuesday as the deadline for placing an issue on the statewide ballot, timing is critical.

House Speaker Catherine Hanaway, R-Warson Woods, and Senate President Pro Tem Peter Kinder, R-Cape Girardeau, on Thursday formally signed dozens of bills passed during the recently concluded legislative session but don't plan on endorsing the same-sex marriage proposal until May 28 -- three days after the ballot deadline. The delay would ensure a November vote should Nixon lose his case.

Since high turnout for the issue is expected among conservatives, a November vote is seen as providing a potential advantage for Republicans in head-to-head contests with Democrats for statewide offices and legislative seats. The two parties' candidates won't directly run against each other in the August primaries.

In his lawsuit, Nixon says that unlike bills, proposed constitutional amendments need not be signed by legislative leaders.

Nixon and his attorneys cite the section of the Missouri Constitution governing constitutional amendments that says the legislature may propose amendments when each chamber has voted to do so and the results are entered into the House and Senate journals -- actions that have already taken place.

Assistant attorney general Paul Wilson, who argued the case before Callahan, said Blunt's position in regard to proposed constitutional amendments has no basis in law.

"There is nothing to be served by waiting for the General Assembly in a technical session to have their presiding leaders sign a piece of paper," Wilson said.

Terry Jarrett, Blunt's legal counsel, pointed to the constitutional provision that governs legislative proceedings. It says that no bill shall become law until signed by the presiding officers of each legislative chamber.

"It's more than procedural; it's more than window dressing," Jarrett said. "There's real substance here."

Wilson countered that the section Jarrett relies on spells out the ministerial function of sending bills to the governor to be signed into law or vetoed. Proposed constitutional amendments bypass the governor and go directly to voters for ratification.

If the court determines a constitutional amendment must be signed by legislative leaders before the secretary of state can act, Wilson said the constitutionality of the law requiring measures be certified for the ballot at least 10 weeks prior to the election becomes an issue. A law cannot prevent the governor from exercising his constitutional power, Wilson said.

However, Wilson said that issue need not be reached if Callahan orders Blunt to follow the governor's instructions.

Hanaway said the issue would be best decided during the general elections, which typically yield higher voter turnout than the primaries.

"Any time you amend the constitution it is an important decision, and you want the highest possible participation among Missourians," Hanaway said.

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

mpowers@semissourian.com

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