TOPEKA, Kan. — Civil liberties attorneys told the U.S. Supreme Court Tuesday that delaying same-sex marriages in Kansas will harm same-sex couples and their families, while the state would not be significantly affected if it can’t keep enforcing its ban.
The American Civil Liberties Union responded to a request from Kansas to the high court to maintain the state’s ban. The state wants to continue enforcing its policy against gay marriage while the federal courts review a legal challenge filed by the ACLU on behalf of two lesbian couples.
A federal judge last week ordered the state to stop enforcing its ban as of 5 p.m. CST Tuesday, but Kansas Attorney General Derek Schmidt appealed to the nation’s highest court. Justice Sonia Sotomayor on Monday put the judge’s order on hold – but asked the ACLU to respond, setting the deadline an hour before the judge’s order was to take effect.
“While this case remains pending in this Court, children will be born, people will die, and loved ones will fall unexpectedly ill,” the ACLU attorneys said in their response. “The substantive legal protections afforded by marriage can be critical, if not life-changing, during such major life events and personal crises.”
Same-sex marriage is legal in 32 states, the District of Columbia, and parts of Missouri.
In Nebraska, the ACLU announced Tuesday that it will file a federal lawsuit next week to challenge that state’s ban. A federal judge struck down a voter-approved ban in the state constitution in 2005, only to see a federal appeals court reverse that decision a year later – well before federal courts began striking down such bans in other states.
Gay-rights advocates in Kansas weren’t sure when or where gay couples would be able to get marriage licenses there because of the tangle of litigation over the issue, which also includes a separate state case. Schmidt argues that the complex legal situation argues for keeping the ban in place for now.
Kansas never has recognized same-sex marriages, and voters overwhelmingly approved an amendment to the state constitution in 2005 to reinforce the gay marriage ban.
But gay couples in Kansas began seeking marriage licenses after the U.S. Supreme Court refused Oct. 6 to hear appeals from five other states seeking to preserve their gay-marriage bans following adverse lower-court rulings. In Kansas, state district court clerks’ offices issue marriage licenses after a mandatory three-day wait.
Chief judges in Douglas and Sedgwick County directed their clerks’ offices not to issue licenses to same-sex couples, prompting the ACLU’s federal lawsuit.
But the chief judge in Johnson County, in the Kansas City area and the state’s most populous county, ordered licenses to be issued.
That prompted Schmidt to file a petition with the Kansas Supreme Court, hours before the ACLU filed its federal lawsuit. One lesbian couple in Johnson County obtained a license and married in the meantime.
The Kansas court said marriage license applications from same-sex couples could be accepted but not issued until its case is resolved. That order remained in effect Tuesday.
Schmidt has argued that if the federal judge’s injunction takes effect, it will apply only in Douglas and Sedgwick counties, because their court clerks were sued. But Bonney believes the federal order would apply statewide.
Tom Witt, executive director of the gay rights group Equality Kansas, said it’s not clear how court clerks in each of the state’s 105 counties would react.
“I think you’re still going to see questions around the state – and different answers,” Witt said.
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