JACKSON, Mississippi (AP) — Mississippi, which does not allow same-sex marriages, should find a way to grant a divorce to a DeSoto County woman who married another woman in California in 2008, lawyer Casey Varnado told the state Supreme Court on Wednesday.
The attorney general’s office, though, told the court that the state can’t grant a divorce to Lauren Czekala-Chatham and Dana Ann Melancon because their marriage is void in Mississippi.
There may be a way out for the nine justices on Mississippi’s top court: They could find a way to grant a divorce or legally dissolve the marriage without overturning the state constitutional amendment and law that limit marriage to a union between only one man and one woman. They could also wait for the U.S. Supreme Court to rule.
Presiding Justice Jess Dickinson repeatedly asked Wednesday why, if Mississippi opposes same-sex marriage, would the state want to keep such a union from ending?
“Why aren’t we encouraging same-sex persons to come into Mississippi and get a divorce?” Dickinson asked Assistant Attorney General Justin Matheny.
Matheny answered that to do so would require the state to recognize the marriage, which would be illegal.
“You can’t get past that,” Associate Justice David Chandler said. “There’s no way to grant a divorce or an annulment in Mississippi.”
Associate Justice Randy Pierce repeatedly noted that the state will grant divorces to other people who aren’t allowed to marry in Mississippi but married elsewhere, such as first cousins.
Varnado also argued that Czekala-Chatham had a separate right to access the courts to seek a divorce, and should be allowed a divorce in Mississippi because she has a right to travel.
“Imagine how it would be if heterosexual couples had to go back to the state where you were married to get divorced,” Czekala-Chatham said after the hearing. She said she faces criticism from other same-sex couples who feel her quest for a divorce puts advocacy for same-sex marriage in a bad light. She said she must file her income taxes as a married person and faces other obstacles because she’s still married.
“It interferes in everything I do,” she said.
Wednesday’s arguments came against a rapidly changing legal backdrop. Since Czekala-Chatham sought a divorce in 2013, courts in a number of states have declared same-sex marriage legal. Last year, U.S. District Judge Carlton Reeves overturned Mississippi’s law and constitutional amendment. His ruling was frozen while the state appealed to the U.S. 5th Circuit Court of Appeals.
Because the U.S. Supreme Court agreed to hear a case on the legality of gay marriage last week, several justices asked whether a stay would be appropriate to see how that court ruled. If the top federal court declares same-sex marriage legal nationwide, Czekala-Chatham would get all the rights of a married person in Mississippi, including divorce. Both Varnado and Matheny said they wouldn’t oppose a stay.
Joshua Block, a staff attorney for the American Civil Liberties Union’s LGBT project, said other same-sex divorce cases have been litigated nationwide, with cases pending now in Missouri and Texas. He said some states have agreed with Dickinson that they can grant divorces without allowing same-sex couples to marry.
“Telling people they can get divorced doesn’t put the state imprimatur on the relationship in the same way as granting a marriage license,” Block said.
Block said even if the Supreme Court legalizes gay marriage nationwide, a Mississippi ruling could have value.
“Hearing what the Mississippi Supreme Court says may well be relevant going forward,” Block said.