ACLU announces new challenge to Kansas same-sex marriage ban

Kansas has asked the court to dismiss as moot the lawsuit filed by the American Civil Liberties Union challenging the ban. ROXANA HEGEMAN [ap]

WICHITA, Kan. — A decision by the U.S. Supreme Court on Monday turning away appeals from five states seeking to prohibit same-sex marriages is expected to clear the way for the unions to happen in Kansas – but it may take a bit more legal wrangling before the conservative state will do so.

KansasWithout commenting, the nation’s highest court brought to an end delays in gay marriage in five states – Indiana, Oklahoma, Utah, Virginia and Wisconsin.

That effectively makes gay marriage now legal in 30 states. Couples in six other states – Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming – should be able to get married soon as those states would be bound by the appellate rulings that earlier had been put on hold.

“Marriage equality is coming to Kansas,” said Thomas Witt, executive director of the gay rights group Equality Kansas. “It may not be this morning, but it may be another morning very soon.”

Some same-sex couples who applied for marriage licenses on Monday, however, were turned away. The Kansas Attorney General’s Office did not return phone and email messages seeking comment about the state’s next move to reconcile the ruling by the 10th U.S. Court of Appeals and Kansas’ ban on gay marriage.

And Kansas Gov. Sam Brownback issued a statement saying he swore an oath to support the state constitution.

“An overwhelming majority of Kansas voters amended the Constitution to include a definition of marriage as one man and one woman. Activist judges should not overrule the people of Kansas,” Brownback said.

The Kansas Supreme Court has given district court clerks no guidance on what they should do with requests from gay couples for marriage licenses. The court “does not decide questions of law until they are brought before the court,” spokeswoman Lisa Taylor said.

Since the appeals from Oklahoma and Utah originated within the 10th Circuit, that court’s decision overturning those bans on gay marriage will affect all states in that circuit, including Kansas, said Doug Bonney, chief counsel and legal director of the American Civil Liberties Union of Kansas and Western Missouri. The court had put its ruling on hold, and the ACLU had decided to wait to see what the Supreme Court would do.

With the Supreme Court refusing to hear the appeals, the stays in those cases were lifted. The ACLU now plans to seek plaintiffs for a lawsuit in federal court, and will likely ask for a preliminary injunction blocking the Kansas law, Bonney said.

Kerry Wilks and Donna DiTrani went to the Sedgwick County Courthouse Monday along with their minister to get a marriage license. The couple, who had a civil union two years ago, were refused the paperwork to get a license. Wilks said she did not want to go elsewhere to get married.

“It made me angry to think I would have to go to another state to practice a basic civil liberty,” Wilks said. “It made me angry to think that I would come back and the marriage would not be recognized. I wanted to stay and fight in my home for equality.”

Aimee McCarter and Jennifer Kozushko said outside the courthouse they were disappointed after they were not allowed to get their marriage license. The couple, who had a ceremony three years ago, are trying to adopt three children and said a legally recognized marriage would be helpful.

“It is not like we expected anything different,” McCarter said before the couple walked away, holding hands.

While the justices stopped short of resolving for now the question of same-sex marriage nationwide, Witt was undeterred about Kansas.

“It is not here quite yet,” Witt said. “But I feel like the kid in the back of the car saying, ‘Are we there yet?'”

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