Tenth Circuit denies stay, won’t block same-sex marriages in Kansas


TOPEKA, Kan. — A federal appeals court Friday cleared the way for gay marriages to start in Kansas next week, rejecting a request from the state to keep its ban in place while it considered a legal challenge from two lesbian couples.

KansasThe 10th U.S. Circuit Court of Appeals in Denver denied a request from Kansas 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.

U.S. District Judge Daniel Crabtree issued the injunction this week in a lawsuit filed by the American Civil Liberties Union on behalf of the couples, who were denied marriage licenses. Crabtree stayed his order until 5 p.m. Tuesday to give the state time to appeal. Kansas asked the appeals court to issue its own stay so the state could keep its gay-marriage ban in place while the appeals judges reviewed the case.

Crabtree’s injunction is now set to take effect, allowing same-sex couples to marry legally. But a separate case – filed by Schmidt to block counties from issuing marriage licenses – is before the Kansas Supreme Court, which barred such licenses while it reviewed its case.

It wasn’t immediately clear how the two separate cases would interact. Schmidt and a spokeswoman did not immediately return telephone messages seeking comment.

Both cases 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. Kansas voters overwhelmingly approved an anti-gay marriage amendment to the state constitution in 2005.

Two of the appeals spurned by the U.S. Supreme Court were from Oklahoma and Utah, which also are covered by the 10th Circuit. Crabtree noted in issuing his injunction that the appeals court previously struck down the Oklahoma and Utah bans, similar to the one in Kansas.

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The Kansas Supreme Court case involves an order by Chief Judge Kevin Moriarty of Johnson County District Court, directing marriage licenses to be issued to same-sex couples.

A lesbian couple received a license and wed, but Schmidt quickly filed a petition to prevent any more licenses from being issued.

The Kansas court had directed the parties in Schmidt’s case to submit written arguments by Nov. 14 on whether it should continue blocking same-sex marriage licenses and whether it should wait to consider Schmidt’s petition until the federal courts resolve the ACLU lawsuit.

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