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Liberal Federal Judge
 Redefines Marriage
in State of Missouri



A federal judge in Kansas City has become the latest tyrant in black robes to strike down Missouri's constitutional amendment defining marriage as the union of a man and a woman.  U.S. District Judge Ortrie Smith has ruled that Missouri's Marriage Amendment and other state laws defining traditional marriage are a violation of the Due Process and Equal Protection Clauses of the 14th Amendment to the U.S. Constitution.


Judge Smith, who was appointed to his lifetime post by former President Bill Clinton, was ruling on a challenge filed against the Jackson County Recorder of Deeds by the American Civil Liberties Union.  ACLU lawyers were representing two same-sex "couples" who were demanding that the Jackson County Recorder's office issue them "marriage" licenses.  Judge Smith has now ordered the Jackson County Recorder of Deeds to do just that, but has stayed the effect of his decision until the case is heard on appeal.


That appeal will be heard by the 8th U.S. Circuit Court of Appeals, which has already ruled that laws preserving traditional marriage do not violate federal due process or equal protection guarantees.  Judge Smith acknowledged that previous 2006 ruling in the Citizens for Equal Protection v. Bruning case.  However, in an amazing display of twisted logic and contorted reasoning, Judge Smith concluded that the Bruning decision did not deal with the alleged "right" of same-sex individuals to "marry."  This despite the fact that the entire case was predicated on that argument.


In supremely arrogant fashion, Judge Smith closed his eyes and his mind to an unmistakable reading of the 8th Circuit decision.  The three-judge panel of the 8th Circuit wrote in 2006:  "...No justice of the Supreme Court has suggested that a state statute or constitutional provision codifying the traditional definition of marriage violates the Equal Protection Clause or any other provision of the United States Constitution...We hold that laws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States."


Judge Smith went so far as to assert that same-sex individuals have a "fundamental right" to be "married."  This is a wholesale contradiction to longstanding federal case law.  The U.S. Supreme Court has long declared that a fundamental right must be deeply rooted in the history and tradition of the nation.  The concept of same-sex "marriage" has been unheard of in nearly the entire history of the nation until homosexual activists starting clamoring for its acceptance in recent years.


Like other dictatorial lower court judges who have ruled in recent months on this issue, Judge Smith somehow asserted with a straight face that there is no "rational basis" for defining marriage as the union of a man and a woman. This despite the fact that marriage has only been understood as the union of a man and a woman during virtually the entire history of the human race in nearly every civilization on every continent on the planet.  


As a result of Judge Smith's decree, the Jackson County Recorder of Deeds has begun issuing "marriage" licenses to same-sex "couples," despite the Judge's action to stay the effect of his ruling.  In so doing, Jackson County joins St. Louis City and County in defying state law that declares that " a marriage between persons of the same sex will not be recognized for any purpose in this state..."


St. Louis City and County began issuing same-sex "marriage" licenses following a ruling last week by St. Louis City Circuit Judge Rex Burlison, a close political ally of Governor Jay Nixon.  In that ruling, Judge Burlison also ruled that the Marriage Amendment approved by 71% of Missouri voters in 2004 is a violation of the equal protection guarantees of the U.S. Constitution. Judge Smith repeated the dishonest behavior of Judge Burlison in ignoring U.S. Supreme Court precedent that "the definition and regulation of marriage" is "within the authority and realm of the states."


Missouri Attorney General Chris Koster has announced he will appeal Judge Smith's decision to the 8th U.S. Circuit Court of Appeals.  This is news in and of itself, since Koster had recently decided that he would abandon the duties of his office and refuse to appeal another adverse decision by Jackson County Circuit Judge J. Dale Youngs requiring the state of Missouri to provide legal recognition to out-of-state same-sex "marriages."


The fact that Koster intends to appeal Judge Smith's decision does not count for much.  Koster has so far limited the arguments to be advanced by his lawyers in defense of traditional marriage.  He has refused to allow state attorneys to assert the many clear and convincing rational bases for true marriage.  Instead, he has restricted the legal argument to one of uniformity, which state and federal judges have uniformly dismissed.

Legislative leaders in the Missouri General Assembly have responded aggressively to the latest lawless state of affairs regarding marriage in Missouri.  Last Friday, Senate and House leaders hand-delivered a letter to Attorney General Chris Koster calling on him to do his job.  The correspondence was signed by Senate President Pro Tem Tom Dempsey, House Speaker Tim Jones, and incoming House Speaker, Representative John Diehl.

In the letter, the legislators demanded that Koster appeal the decision by Judge Youngs to the Missouri Supreme  Court, and that he seek a stay of the decision by Judge Burlison.  Should Koster continue to refuse to do so, the legislators called for Koster to appoint an outside special assistant attorney general "to zealously defend the existing statutory and constitutional provisions approved by the voters."  This happened before when Governor Jay Nixon served as Attorney General.  He appointed an attorney outside his office to represent the state in a case involving Planned Parenthood.

Should Koster refuse to appoint outside counsel to defend Missouri's marriage laws, the legislators made clear they would seek to intervene in court in their official capacities to see that Missouri's Marriage Amendment and Defense of Marriage Act are enforced and defended.

With regard to the Burlison ruling, the legislators wrote:  "There is concern that a ruling of a single circuit court judge...will be allowed to go into effect before the appeal can be heard by our state's highest court on this very important issue.  Allowing this ruling to take effect will cause confusion while awaiting a clear decision by the Supreme Court where marriages could occur and then be set aside.  This sets a dangerous precedent and undermines the very fabric of a system of government where a balance between the three co-equal branches is essential to the protection of the liberties enjoyed by its citizens."

We could not be more pleased with the concrete actions being taken by Senator Dempsey and Representatives Jones and Diehl to see that the will of Missouri citizens is argued and defended in the absence of the Attorney General.  We urge you to contact their offices and thank them for standing up for marriage and the family in our state.  Their contact information is below.

On the national level, there has been a breakthrough in the federal courts in ongoing marriage litigation.  Last week, the Sixth U.S. Circuit Court of Appeals issued a scholarly decision upholding the traditional marriage laws of the state of Michigan, Ohio, Kentucky, and Tennessee.  This almost inevitably forces the U.S. Supreme Court to hear an appeal of this decision and decide this issue once and for all.  Four other appelate courts (the 4th, 7th, 9th, and 10th) have issued previous rulings mandating the redefinition of marriage to include same-sex unions.

It is imperative that the State of Missouri appeal Judge Smith's ruling to the 8th Circuit in the most vigorous and complete fashion, because it is likely that the judges of the 8th Circuit would reaffirm their previous decision from 2006, and follow the lead of the 6th Circuit in upholding traditional marriage.  That is why what is happening now is so critical.

Please be praying ever so fervently about these legal maneuvers that will have such a huge impact on the future of marriage and the family in Missouri.  And please contact the legislators below to thank them for their courageous moral leadership on this issue.

Senator Tom Dempsey
(573) 751-1141

Representative Tim Jones
(573) 751-0562

Representative John Diehl
(573) 751-1544
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