A federal judge in Missouri has declined to lift the hold on his judgment striking down the state’s same-sex marriage ban.
In a two-page order Tuesday afternoon, U.S. District Judge Ortrie Smith rejected a request by the ACLU of Missouri that he lift the hold, or stay, that he himself had imposed on his judgment.
Smith said he had entered the stay because there was a possibility a higher court – the 8th U.S. Circuit Court of Appeals or the U.S. Supreme Court – might find that his ruling striking down the ban was wrong.
If he were to lift the stay, Smith wrote Tuesday, then the Jackson County Recorder of Deeds and others might begin issuing same-sex marriage licenses “that could later be determined to have been issued in error.”
Smith distinguished the case before him from cases in other circuits where higher courts have struck down state same-sex marriage prohibitions. The Eighth Circuit, which includes Missouri, has yet to rule on the issue.
Smith likewise rejected the ACLU’s argument that because a state court had found the ban unconstitutional, the stay of his order was moot.
Smith, however, gave the defendants in the case – the Jackson County Recorder of Deeds and the state of Missouri – until Dec. 8 to file notices of appeal. If neither appeals, he said, the stay will expire on Dec. 9. And if either appeals, he said both were free to ask the appeals court to lift the stay.
Missouri Attorney General Chris Koster has said he intends to appeal Smith's judgment.
In a ruling earlier this month, Smith found that Missouri’s same-sex marriage ban violated the equal protection and due process clauses of the U.S. Constitution.
Smith’s decision tracked those of virtually every court that has ruled on state same-sex marriage bans. A rare exception occurred a few days before Smith ruled when the 6th U.S. Circuit Court of Appeals in Cincinnati upheld the right of four states to prohibit same-sex marriage – a decision at odds with those of four other federal appellate courts.
Smith’s ruling came two days after a state court judge in St. Louis found Missouri’s ban to be a violation of the U.S. Constitution. And it followed yet another decision on Tuesday by a federal judge in Kansas City, Kan., that overturned Kansas’ ban on same-sex marriage.
The case before Smith was brought by the ACLU of Missouri on behalf of two same-sex couples who were denied marriage licenses.
While finding Missouri’s ban unconstitutional, Smith stayed his judgment. The ACLU asked him to lift the stay last week.
To see KCUR's timeline of gay marriage milestones in Missouri and Kansas, click here.