KANSAS CITY, Kan. — A federal judge on Tuesday ordered Kansas to allow same-sex couples to marry pending the outcome of a lawsuit challenging the state’s ban, but he delayed enforcement of his order until next week to give the state time to appeal.
U.S. District Judge Daniel Crabtree issued a preliminary injunction barring the state from enforcing its constitutional ban as of 5 p.m. next Tuesday, pending the outcome of an American Civil Liberties Union lawsuit challenging it.
The state is expected to appeal Crabtree’s order – Assistant Attorney General Steve Fabert told the judge in court last week that the state would appeal if such an order were issued.
The ACLU sued to overturn Kansas’ ban after the U.S. Supreme Court refused to hear appeals from five states seeking to preserve their same-sex marriage bans. Among them were Oklahoma and Utah, which like Kansas fall under the jurisdiction of the 10th Circuit Court of Appeals.
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The ACLU filed its lawsuit on behalf of two lesbian couples, one in Douglas County and one in Sedgwick County, who had been denied marriage licenses. The defendants include the secretary of the Kansas Department of Health and Environment, which provides license forms and maintains copies of marriage certificates.
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Crabtree wrote that Kansas’ ban is infringing on the plaintiffs’ constitutional rights, and he seemed reluctant to delay their right to marry, even by a week. He said the 10th Circuit had already settled the substance of the constitutional challenge, but conceded that the appeals court may view the case differently than he views it.
“On balance, the court concludes that a short-term stay is the safer and wiser course,” he wrote in granting the one-week delay.
Currently, same-sex marriage is legal in 32 states and in the District of Columbia.
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Kansas AG vows appeal, will ask for en banc hearing
Kansas Attorney General Derek Schmidt on Tuesday vowed to appeal a federal judge’s ruling that the state allow same-sex couples to marry, issuing this statement:
“The State of Kansas continues to have a strong interest in the orderly and final determination of the constitutionality of its prohibitions on same-sex marriage. The state defendants will promptly appeal this decision to the Tenth Circuit Court of Appeals and will ask for consideration by the full Circuit Court. Such a request for en banc consideration was not previously made by either Utah or Oklahoma when their cases were heard by a three-judge panel of the appellate court.
“The District Court recognized the weight of its decision to declare a provision of the Kansas Constitution in violation of the United States Constitution and thus unenforceable. Kansas appreciates Judge Crabtree’s willingness to delay his order while the state defendants file their appeal.”
