Federal court orders Moniteau County to issue inmate marriage licenses

By Bob Watson

For the Democrat

Add Moniteau County to the list of Missouri counties with federal court orders about inmates and marriage licenses.

On Thursday, U.S. District Judge Gary Fenner ruled that Missouri’s law “that marriage licenses be signed ‘in the presence of the recorder of deeds or their deputy’ … is unconstitutional as applied to situations where an applicant for a marriage license is physically unable to appear in the presence of the recorder of deeds or their deputy due to incarceration at the Tipton Correctional Center or other incarceration facilities located in Moniteau County.”

Fenner’s seven-page ruling answered a lawsuit filed by the ACLU of Missouri on behalf of three women who plan to marry Tipton Correctional Center inmates later this month.

“Their marriage ceremonies are at risk of being cancelled because of Plaintiffs’ inability to obtain marriage licenses,” Fenner wrote, noting that Michele A. Higgins, Moniteau County’s recorder of deeds, “does not oppose Plaintiffs’ request for relief,” but didn’t feel like she could issue the licenses because “she believes that she is bound by the statutory in-presence requirement and notes that any person who violates the provisions of (the law) ‘shall be deemed guilty of a misdemeanor.’”

Fenner ordered Higgins to issue a license to any incarcerated person and his or her fiancé without requiring the person in prison to fill out the marriage license application in front of the recorder or a deputy, as long as the prison provides “reasonable written proof as to the authenticity of the signature of an applicant on a marriage license application … reasonable verified proof of the fact that the applicant is physically unable to appear in the presence of the recorder of deeds at the time the application is completed, and upon receipt of all fees and other documents required for the issuance of a marriage license.”

Fenner is the third federal judge to rule on the issue in the past year, with all three determining that people have a fundamental right to marry, protected by the “due process clause” of the U.S. Constitution’s 14th Amendment.

Last March, Fernando Gaitan Jr. — chief judge of the federal court’s Kansas City-based Western District — issued the ruling in a case the ACLU filed against Cole County Recorder Larry Rademan.

Last June, Judge Catherine D. Perry of the St. Louis-based Eastern District made the same finding in a case against Washington County Recorder Judy Creswell Moyers.

Although all three judges made the same findings, their cases don’t cover the entire state because each one was directed at a specific recorder’s office.

Bills have been filed in both the Missouri House and Senate to change state law, at least as it affects marriage licenses for inmates.

Sen. Mike Parson’s (R-Bolivar) bill was introduced Jan. 29 and has not, yet, been assigned to a committee.

Rep. Shawn Rhoads, R-West Plains, will explain his bill at the House Special Standing Committee on Corrections’ hearing at 8 a.m. Wednesday.

Tony Rothert, legal director for the ACLU of Missouri, said in a news release: “The government should be in the business of encouraging and supporting committed relationship, not preventing couples from being married.”

And Jeffrey Mittman, the ACLU’s executive director, added: “Our constitution requires that fundamental rights, like the right to marry, be made available to all citizens.

“The ACLU will continue to advocate for fair marriage laws in Missouri.”

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