Kansas Supreme Court delays same-sex marriage hearing

? The Kansas Supreme Court has delayed a hearing that was set for Thursday to decide whether same-sex marriages can go forward in Kansas.

In a ruling issued late Wednesday, the Supreme Court said that a separate lawsuit working its way through the federal court system could decide whether the state’s constitutional ban on gay marriage is valid and thus render the question pending before the state court moot.

Instead, the Supreme Court issued an order for all parties in the case to “show cause” why the case in state court should not be delayed until the federal lawsuit is resolved.

The order came in response to a ruling Tuesday by U.S. District Judge Daniel Crabtree, who issued a temporary injunction against certain state officials, barring them from denying marriage licenses to same-sex couples.

But Crabtree stayed the effective date of that order for one week to give Kansas Attorney General Derek Schmidt’s office time to appeal to the 10th U.S. Circuit Court of Appeals. Schmidt filed the appeal Wednesday.

Those are just the latest in what has been a flurry of judicial action in the last month since the U.S. Supreme Court refused to hear the appeals of several other cases, including two from the 10th Circuit, in which appellate courts struck down state bans on gay marriage that are similar to the one in Kansas.

Following that decision Oct. 6, dozens of same-sex couples in Kansas went to their county courthouses to apply for marriage licenses. Most were denied.

But in Johnson County, Chief Judge Kevin Moriarty issued an administrative order Oct. 10 directing the court clerks to process marriage licenses for same-sex couples just as they would for any opposite-sex couple who were otherwise qualified to marry.

Schmidt’s office immediately filed an action with the Kansas Supreme Court seeking an order — formally known as a writ of mandamus — to block Moriarty’s order. Schmidt argued that Moriarty had no legal authority to order his staff to grant marriage licenses to gay couples because the Kansas ban on gay marriage has not been overturned, at least as of yet.

The Supreme Court agreed to hear that case, stayed Moriarty’s order and set a hearing for 10 a.m. Thursday.

Also on Oct. 10, however, the American Civil Liberties Union filed a federal lawsuit on behalf of lesbian couples in Douglas and Sedgwick counties challenging the refusal by court clerks in those counties to issue them marriage licenses.

After a hearing last week, Judge Crabtree on Tuesday granted a temporary injunction against enforcement of the ban, but stayed the injunction until Schmidt could appeal to the 10th Circuit.

In its order Wednesday, the Supreme Court said the two cases were intertwined, and the federal case could decide what happens with the state case.

“In the federal district court’s ruling, it exercised jurisdiction over the constitutionality of Kansas’ same-sex marriage ban,” the court wrote. “If Schmidt’s mandamus action in our court were to proceed, we would also likely reach the same constitutional questions reviewed in (the federal case).”

The Supreme Court set another hearing date of Nov. 14 to review whether the state court action against Judge Moriarty should proceed.

Both of those cases challenge the state’s refusal to issue marriage licenses to same-sex couples. But neither directly challenges the state’s refusal to recognize gay marriages that are legally performed in other states.

A third Kansas case now pending in Shawnee County District Court does challenge that. It was filed by Lawrence attorney Doug Brown against the Kansas Department of Revenue, which has said legally married same-sex couples must file separate state income tax returns, even though they are allowed to file jointly on their federal returns.

That case also is set for hearing Nov. 14.