Tenth Circuit denies Kansas’ request for full court hearing on marriage ruling

The Byron White U.S. Courthouse in Denver, the seat of the U.S. Court of Appeals for the 10th Circuit. Staff Reports

DENVER — The U.S. Court of Appeals for the Tenth Circuit on Tuesday denied a request by the state of Kansas for an en banc hearing on a challenge to the state’s same-sex marriage ban.

The Byron White U.S. Courthouse in Denver, the seat of the U.S. Court of Appeals for the 10th Circuit.

The Byron White U.S. Courthouse in Denver, the seat of the U.S. Court of Appeals for the 10th Circuit.

An en banc hearing is when a case is heard before all the judges of a court.

Kansas Attorney General Derek Schmidt had asked the court to assign all 12 active judges — instead of the usual three-judge panel — to hear the state’s appeal of a federal judge’s Nov. 4 ruling last month striking down the ban.

In a brief order, the court denied Schmidt’s request.

“No judge in regular active service on the Court requested that the Court be polled on the motion for initial hearing en banc,” the Court’s response read. “As a result, Appellants’ motion for an initial hearing en banc is denied.”

Previously, the 10th Circuit denied the state’s request to put the district court’s ruling on hold pending the outcome of an appeal, and on Nov. 12, the U.S. Supreme Court allowed same-sex marriages to begin in Kansas while the state continues to fight the ruling.

To date, at least 29 of the state’s 105 counties are issuing marriage licenses to same-sex couples, according to Equality Kansas. The list includes the state’s five most populous counties — Johnson, Sedgwick, Shawnee, Wyandotte and Douglas — which account for more than 50 percent of the state’s population.

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Many counties have refused to issue marriage licenses to same-sex couples after Schmidt said the courts’ rulings only apply in the two counties (Douglas and Sedgwick) where the court clerks are defendants, but the American Civil Liberties Union has argued that a federal ruling declaring the ban unconstitutional applies statewide.

The state has also refused to recognize same-sex marriages while it appeals, prompting the ACLU to expand its lawsuit against the state.

Schmidt says he intends to continue fighting the case until there is a clear decision from the U.S. Supreme Court on the constitutionality of Kansas’ same-sex marriage ban.

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