TOPEKA, Kan. — A federal appeals court Friday cleared the way for same-sex marriages in Kansas next week, but the state’s attorney general promised to ask the U.S. Supreme Court to preserve a ban on same-sex marriage while lower courts consider its constitutionality.
The 10th U.S. Circuit Court of Appeals in Denver denied a request from Attorney General Derek Schmidt’s office to put on hold a lower-court injunction preventing the state from enforcing anti-gay marriage laws, including a provision in the state constitution.
Schmidt said he’ll ask U.S. Supreme Court Justice Sonia Sotomayor to put the injunction on hold.
U.S. District Judge Daniel Crabtree issued the injunction this week in a lawsuit filed by the American Civil Liberties Union on behalf of two lesbian couples who were denied marriage licenses. Crabtree stayed his order until 5 p.m. Tuesday to give the state time to appeal to the 10th Circuit. The state did and asked the appeals court to keep Crabtree’s order on hold, but the 10th Circuit refused.
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The lawsuit has yet to go to trial, and the issue is what happens in the meantime. The ACLU argues that with federal court decisions striking down other states’ gay-marriage bans, same-sex couples shouldn’t have to wait to exercise what the group argues is a constitutionally protected right to wed.
Schmidt, a Republican, and conservative GOP Gov. Sam Brownback have argued that the state must fight for it in court because voters overwhelmingly approved the state constitutional provision in 2005. Schmidt said he’ll seek U.S. Supreme Court intervention before Tuesday.
“I believe I have a duty to exhaust all of the state’s options for appeal,” Schmidt said in a statement.
The legal situation is complicated by a separate case – filed by Schmidt to block counties from issuing marriage licenses – before the Kansas Supreme Court. That court barred such licenses while it reviewed the case, and spokeswoman Lisa Taylor said its order remains in effect.
Tom Witt, executive director of the gay-rights group Equality Kansas, said optimism about the federal courts’ decisions should be tempered but questioned whether the state court case eventually “goes away.”
“What’s the point of hearing this in a state court when the federal courts are fast-tracking a decision?” Witt said.
The legal developments in Kansas arose from the U.S. Supreme Court’s refusal last month to hear appeals from five other states seeking to preserve gay-marriage bans following adverse lower court rulings. The decisions included two from the 10th Circuit, striking down gay-marriage bans in Oklahoma and Utah similar to the Kansas prohibition.
Schmidt noted that the Cincinnati-based 6th U.S. Circuit Court of Appeals on Thursday upheld bans in Ohio, Michigan, Kentucky and Tennessee.
But Carl Tobias, a University of Richmond, Virginia, law professor, predicted that the U.S. Supreme Court will allow Crabtree’s injunction in Kansas to take effect. He said that if the nation’s highest court wanted to preserve state gay marriage bans, it would have reviewed the lower-court cases.
“I think it all ends up with the ban being invalidated in Kansas, but getting there is the problem,” he said.
The state and the ACLU also disagree over the scope of Crabtree’s injunction. Schmidt argues that if it takes effect, it will apply in Douglas and Sedgwick counties, where the couples applied for marriage licenses. ACLU attorney Doug Bonney said Friday that same-sex couples could get a license from any of the state’s 105 counties.
Similarly, Bonney argues that the Kansas Supreme Court deals only with the state’s most populous county, Johnson County, and not with all counties. The state argues otherwise.
When the U.S. Supreme Court refused to hear other states’ cases, the Chief Judge Kevin Moriarty of the state district court in Johnson County directed court clerks and other judges to issue marriage licenses to gay couples. One lesbian couple married before Schmidt filed a petition with the Kansas Supreme Court to block further licenses.
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