Updated: 9:00 a.m. CST
TOPEKA, Kan. — As gay rights activists celebrate a U.S. Supreme Court decision allowing same-sex unions in Kansas, it was unclear Thursday how many counties would issue marriage licenses to gay couples after the state’s attorney general said the ruling doesn’t apply statewide.
Attorney General Derek Schmidt said the high court’s decision applies only in the two counties where the court clerks are defendants, but the American Civil Liberties Union says it applies in all of Kansas’ 105 counties.
The U.S. Supreme Court’s order was consistent with how justices have handled recent requests from other states defending gay-marriage bans. But the legal situation in Kansas is complicated by a case Schmidt filed with the Kansas Supreme Court, which sided with Schmidt and blocked marriage licenses for same-sex couples while his case is heard.
Marriage licenses in Kansas are issued by district court clerks’ offices after a mandatory three-day wait. Schmidt said the high court ruling applies only in Douglas County in northeastern Kansas and in Sedgwick County, in south-central Kansas.
In the state most populous county, Johnson County, Court Clerk Sandra McCurdy said about 70 applications from same-sex couples are pending.
“Until I hear something from the Kansas Supreme Court, I’m not issuing any marriage licenses,” McCurdy said Wednesday.
Other clerks are likely to react the same way “out of an abundance of caution,” said Carl Tobias, a law professor at the University of Richmond, Virginia.
Kansas’ emergency appeal is being closely watched to see whether the court would change its practice following last week’s appellate ruling that upheld gay-marriage bans in Kentucky, Michigan, Ohio and Tennessee. Those cases are headed to the U.S. Supreme Court, meaning the gay-marriage issue nationwide could be heard and decided by late June.
The U.S. Supreme Court last month declined to hear cases from three federal appeals courts that had overturned gay marriage bans. Kansas, South Carolina and Montana all have refused to allow gay couples to obtain marriages licenses despite rulings from federal appeals courts that oversee them.
Gay marriage is legal in 32 other states.
Gay rights advocates say the justices’ action Wednesday was another sign they’re likely to ultimately prevail. “Now, this is a day to celebrate,” said Tom Witt, executive director of the gay rights group Equality Kansas.
Schmidt has the backing of Kansas Gov. Sam Brownback, a fellow Republican who pledged to work with Schmidt to preserve a provision in the Kansas Constitution against gay marriage that was approved overwhelmingly by voters in 2005.
Schmidt filed his case with the Kansas Supreme Court after the chief judge in Johnson County responded to last month’s U.S. Supreme Court action by ordering licenses to be issued to same-sex couples. A lesbian couple received one and quickly wed, becoming the only known same-sex Kansas couple to do so.
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